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COMMENTARIES 


ON  THK 


CONSTITUTION  OF  THE  UNITED  STATES : 


WITH 


A  PRELIMWABT  HEVIBW  OF  THE  CONSTITUTIONAL   HISTOBY 

OF  THE  COLONIES  AND  STATES  BEFOIIE  THE 

AiWPTION  OF  THE  CONSTITUTION. 


Br  JOSEPH  STORY,  L^i). 

IN  TWO  TOLUME& 

Vol.  I. 

FIFTH  EDITION, 
Br  MELVILLE  M.  BIGELOW,  Ph.D. 


"  MuMnlllim  l|Uiir  opoi  Ht ;  doa  qinnm  pndmtlk  t  dtll(*Dtll  ■■•  otTlUi  nan  poun ; 
qaonunqu  daMxIptlDn  omolj  HclputiUca  moiUniki  contjniiiar." 

C[<!BBOp  Di  LiH-»  Ub-  S,  emp,  3 

"OorwuDsat  kf  &  cootritmDn  of  hamu  viidoiii  to  piotkU  for  hanuD  w*du." 

Bcuu. 


BOSTON: 
LITTLE,   BROWN,   AND    COMPANY. 

I8di. 


Bitaied  ueordlBg  to  ut  ot  Cbn^ren,  In  Oa  jtaz  on*  tbonund  dght  bnndred  tad 
tblTtf-tbrce,  by  Joisra  Stobi,  Id  Uie  CUA'i  OffiM  ot  th«  Dlatrict  CooR  ol  the  Oiitrict 

«l  HMMChDMtU. 


EnUred  according  to  Act  of  Congnw,  la  tbe  ;ur  IBfil,  \tj  Wiluam  W.  Stokt,  In  the 
Cleil'a  OSes  id  the  DiMrtct  Court  of  the  District  of  UuuchuMtU. 

Entered  acoording  to  Act  of  CocgrcM,  Id  (he  ynu-  1868,  hy  Wiuum  W.  Stort,  in  the 
Clerk'i  OBee  of  the  DiHiict  Court  of  the  Dtilrlct  of  lUHtchaMta. 

Entered  .eceordiog  to  Act  of  CoDgreaa,  In  the  jm  18T3,  bj  Wiuiam  W.  Stort,  in  tbe 
Office  of  the  Librariu  of  Coogreu,  ■!  Wuhington. 


Copffrighl,  1891, 
Br  WnxuM  W.  Stokt. 


Jobs  Wilmv  avd  Soh,  Cambudoi. 


TO  THE 


HOXOUABLE    JOHN    MAitSILVIX,   LL.D., 


CmiP  JOSTtCS  OF  TUB  UillTKD  ITATK*  QF  AHCRtCA. 


Sir, 

ABK  the  favor  of  dcdicnUng  this  vtoA  to  voii.  I  know  not  to 
whom  it  coultl  nith  so  much  proiiritty  In-  <)r<Ucatc<l  lui  to  one  wl>o«e 
youth  van  engaged  tn  the  Mtluous  eutcriirUm  of  the   It<- volution, 

^wboM  manhood  Assisted  tn  fnuuiug  and  supporting  Uic  nnliona)  Con- 
Htitution,  and  wituse  maturcr  years  have  been  devotcil  to  tlic  task  of 
iiiifoltling  H»  }H>wtjm  and  iHuHinting  its  principles.     Wli«n,  iiidecil, 

,i  look  batck  u|>on  yotir  Jiidkial  labon  during  a  period  of  thirty-two 
it  is  ditlk-ult  to  xipprcMt   aMtoniHtiment   mt  Itivir  extent   wul 

^variety,  and  at  the  es act  ieaniiii|[.  the  profound  ressoning,  and  llie  - 
BoUd  principles  nliieh  they  everywhere  dii<p1ay.  Other  ju<lges  have 
attained  an  elevated  reputation  by  similar  labors,  in  a  tilngle  dopart- 
menl  of  jurinpnidem-e.  But  lu  one  department  (it  nn-d  M?nn-rly  be 
■aid  titat  1  allmle  U>  that  ofponatit^itwoal  law),  tlw  common  con* 
seat  of  your  «>»ntrynicn  ba»  admitted  yoa  to  fltaitd  withont  a  rivxl.^ 
Posterity  will  assuredly  conflnn.  by  its  deliberate  awar^l,  «rkat  tl»e 
present  age  bas  approved  as  an  act  of  undisputed  justice.  Yo«r 
expOBitions  of  constitiitional  law  enjoy  a  rare  and  extraordinary 
antbority.  Tbey  conatStiite  a  monument  of  fame  far  beyotid  the  or- 
dinary mcraorialu  of  [lolitieal  and  military  glory.  ,*rhey  are  dcatlned 
tn  eulijjbti-n,  iitMlruct,  and  convince  future  grni'ralionn,  ami  can 
Bcartely  juTinii  Imt  with  the  memory  of  the  ConHtilution  ituclf.  Tlw-y 
are  the  victoriea  of  a  mind  acctiatomrd  to  grapple  vritli  ditKmilttea, 
capable  of  unfolding  the  rao«t  comprehensive  Iriitlix  witli   mnM-uline 

I  kiiiiplii-ity  and  si-verc  logic,  and  prompt  to  dii^fipate  Uic  illuMinn.t  of 

pngenioua   riotibt   and   subtle   argument   and   impa»«lonc<i    eloquence, 
liey  remind  tis  of  some  mighty  river  of  our  own  country,  which, 

Lgatlicring  in  its  coarse  the  contributions  of  many  tributary  slroame, 
|H>urs   at  last  its  own   current   Into    tbe   ocean,  deep,  «lesr,   aod 

,  irresistible. 

"But  I  confess  that  I  dwell  with  even  more  pleasurr  u|kiu  tbe  entirety 
of  a  life  adorned  by  coniiateut  principle*,  «>d  tilled  up  iu  tlie  dlaebarge 


It  dedication. 

of  virtuoTiB  duty ;  where  there  is  nothing  to  regret,  and  nothing  to  cod- 
ceal ;  no  friendehips  broken ;  no  confidence  betrayed ;  no  timid  sur* 
renders  to  popular  clamor ;  no  eager  reaches  for  popular  favor.  Who 
does  not  heten  with  conscious  pride  to  the  truth,  that  the  disciple,  the 
friend,  the  biographer  of  Washington  still  lives,  the  uncompromising 
advocate  of  his  principles? 

I  am  but  too  sensible  that,  to  some  minds,  the  time  may  not  seem 
yet  to  have  arrived  when  language  like  this,  however  true,  should  meet 
the  eyes  of  the  public.  May  the  period  be  yet  far  distant  when  praise 
shall  speak  out  with  that  fulness  of  utterance  which  belongs  to  the 
sanctity  of  the  grave. 

But  I  know  not  that.  In  the  course  of  Providence,  the  privilege  will 
be  allowed  me  hereafter  to  declare,  in  any  suitable  form,  my  deep 
sense  of  the  obligations  which  t^e  Jari&pradence  of  my  country  owes 
to  your  labors,  of  which  I  have  been  for  twenty-one  years  a  witness, 
and  in  some  bumble  measure  a  companion.  And  if  any  apology  should 
be  required  for  my  present  freedom,  may  I  not  say  that,  at  your  age, 
all  reserve  may  well  be  spared,  since  all  your  labors  must  soon  belong 
exclusively  to  history? 

Allow  me  to  add,  that  I  have  a  desire  (will  it  be  deemed  presump- 
tuous?) to  record  upon  these  pages  the  memory  of  a  friendship  vhich 
has  for  so  many  years  been  to  me  a  source  of  inexpressible  eatisfac- 
tioD ;  and  which,  I  indulge  the  hope,  may  continue  to  accompany  and 
cheer  me  to  the  close  of  life. 

I  am,  with  the  highest  respect, 

Affectionately  yonr  servant, 

JOSEPH   STORY. 
Caubkbqw,  hovMrj,  1883. 


PREFACE  TO  THE  FIFTH  EDITION. 


In  this  erlition  tlie  autlioriticH  are  brought  down  to 
January,  1891 ;  and  to  the  dccisious  of  the  federal 
Supreme  Court  a  considerable  number  of  decisions  from 
the  inferior  federal  courts,  and  front  the  State  courts 
has  been  added. 

The  editorial  notes  have  been  separated  entirely  from 
the  not«^  of  the  author ;  the  latter  ma  acrojfs  the  page, 
after  numerals,  the  former  are  in  double  columns,  after 
letters  of  the  alphabet.  The  notes  of  the  last  edition  (by 
Mr.  Justice  Coolcy)  have  generally  been  retained,  subject 
to  such  chan|:es  as  time  has  made  necessary ;  in  a  few 
instances,  they  have  been  recast ;  in  some  instances  they 
have  been  abridged,  in  some  enlarged.  Whenever  they 
have  been  reprinted  without  change,  and  contain  original 
discnssions  as  distinguished  from  a  mere  statement  of 
the  cases  or  of  familiar  facts,  the  initial  C.  has  been 
added  to  them.  The  chapters  added  to  the  work  by  the 
same  distinguished  editor  are  also  retained. 

The  present  editor's  notes  are  mostly  in  the  second 
volume. 

A  table  of  the  cases  cited  has  been  added,  for  the  first 

time. 

U.  H.  B. 


FKOM  THE  EDITOR'S  PREFACE 


TO  TU£  FOUUTH   EDlTIU^f. 


Is  preparing  for  the  press  a  fourth  edition  of  Mr. 
Justice  Story's  Commentaries  on  the  Constitution,  it  has 
been  thought  proper  to  preserve  the  original  text  without 
alteration  or  interpolation,  and  to  put  into  notes  all  di»- 
cus»iious  by  the  editor,  as  well  as  all  references  to  subse- 
quent adjudications,  public  papers,  and  events,  tending  to 
illustrate,  support,  or  qualify  the  positions  assumed  in  the 
text.  The  new  amendments,  however,  seemed  to  demand 
treatment  in  the  body  of  the  work,  and  additional  chai>- 
ters  are  given  for  that  purpose.  In  preparing  them,  tlie 
editor  has  not  been  ambitious  to  enter  upon  original  dis- 
cussions, or  to  advance  peculiar  views;  and  he  has  con- 
tented himself  with  a  brief  commentar)-  on  the  provisions 
and  purposes  of  the  amendments,  aiming,  as  far  as  possi- 
ble, to  keep  in  harmony  with  the  opinions  and  sentiments 
under  the  inspiration  of  which  they  were  accepted  and 
ratified  in  the  several  States.  .  .  . 


CstvKMtrr  or  Uichioas,  Axk  Akkok,  1873. 


PREFACE. 


I  Kow  ofl«r  to  Uie  public  nooUier  portion  of  tbe  labors  devolved  on 
me  in  die  execution  of  tbe  duties  of  tbe  Dtkoe  Professorehip  of  I^w 
lu  lliirvitrd  l'uiri>T»it^-.  TIm  importance  of  tb«  iiub>ecl  will  hunlly 
be  doubted  by  nay  pcnons  w)>o  have  b«cn  aocnstomod  to  deep  re- 
lectioD  upon  tbe  natnre  and  vtdue  of  tbe  Constitution  of  the  UDit«d 
St«t«8.  I  can  only  regret  that  it  has  not  fallen  ioto  abler  haodfl, 
with  more  leisure  to  pre]>arc,  and  more  various  knowleilge  to  bring 
to  pucb  a  task. 

Imperfect,  boirever,  as  these  Commentaries  may  seem  to  those  who 
are  aoeuBlomed  to  demand  a  perfect  llnlab  In  all  elemenlarv  woriis, 
Uiey  have  been  attended  with  a  degree  of  uninvltii^  Intwr  and  dry 
mfcarcb,  of  which  it  i«  scarcely  i>os)tiblc  for  tlic  general  reader  to 
foRD  any  adequate  estimate.  Usny  of  the  materials  lay  loose  and 
eotttered.  and  were  to  l>e  gathered  up  amon^  pamphlets  and  discus- 
alons  of  a  Leinporary  character;  among  obM'ure  private  and  public 
documcntH ;  and  from  collectioits  which  retiuired  an  eiEbauttiing  dili- 
gene*  to  master  their  contents,  or  to  select  from  important  msi«cs 
a  few  facts  or  a  ^itary  argument.  Indceil,  it  required  no  small 
labor,  even  after  these  sources  were  ex])lored,  to  bring  t<%ctber  tbe 
Irregular  fragments,  and  to  form  them  into  groupa  tn  whicb  tfaey 
might  illustrate  and  support  each  otlier. 

From  two  grt-at  source*,  however,  I  have  drawn  by  far  the  gnrate«t 
)>art  of  my  moiit  valuable  materials,  llicso  are,  Itie  l-'ederalist,  an 
incomparable  commentary  of  three  nf  tbe  greatest  statesmen  of  their 

e,  and  tbe  extraordinary  JudgmenU  of  Sir.  Chief  Jnstico  Marshall 
'upon  constitutional  law.    Tlie  former  have  discussed  the  stnicture  and 


FREFACB. 


oi^uiizaUoa  of  the  natioaa)  goremmeDt,  io  ati  its  depftrtmcut*,  wiUi 
ailinirublv  TiilncM  and  force.  Tli«  laiu-r  luis  ex|>ou[uled  Ui«  appUca- 
tioa  and  ItmitH  of  iIk  jxtwcrs  and  faiK-tiuiut  villi  unrivuUed  profound- 
DCBfi  and  felicity.  Itie  Federalist  coold  do  liltl«  mora  titan  a1at«  Ihv 
objecta  aud  general  beanng  of  these  powers  and  fuactiooB.  ThA 
masterly  niaKoiiiDg  of  the  Chief  JuaUce  liaa  followed  them  oat  to 
tbdr  nltimatc  rc«ult«  and  iMundariea  with  a  prccisioo  ai>d  deamesa 
•pproacliitig,  as  near  as  may  bo,  to  mathematical  d^monBtnition. 
The  Federalist,  being  written  to  nie«t  the  moet  prevalent  popular 
objectloos  at  tlie  time  of  tJie  adoption  of  the  Constitution,  hoa  not 
attempted  to  puraue  any  very  exact  order  io  ita  rcaaoniiiga,  but 
baa  taken  np  suhjedx  in  mcli  a  tuanncr  aa  was  best  adapt«^)  at  tbs 
time  to  overcome  prejudices  and  win  favor.  Topics,  therefore,  hanng 
a  natural  connectioa  are  someUmes  separated ;  and  tlluBtrationB,  ap- 
propriate to  several  imiwrtaut  poiuts,  arc  sometimiw  prcaeoled  in  an 
incidontol  diMDsaloa.  I  hare  transfcrriKl  into  my  own  pages  all  which 
seeinwl  to  bt  of  pennaacnt  importance  tn  that  groat  work,  and  hart 
thereby  endeavored  to  make  Its  merita  more  generally  known. 

Tlic  reailer  miutt  not  expect  to  Hod  in  these  pages  any  novel  views 
aiKl  novel  coDtlructiouit  of  the  Conittitntton.  I  have  not  tiic  amlntion 
to  be  the  autlior  of  any  new  plan  of  liiterpratliig  the  theory  of  ttic 
Constitution,  or  of  efdaif^ng  or  narrowing  \te  powers  by  logenioua 
subtilties  an<I  learned  doubts.  My  object  wilt  be  auGBoientty  attained, 
if  I  shall  havfi  ouocM-dt^l  in  hrin^ng  before  the  reader  the  true  view 
(rf  its  powers,  maiotaineil  by  its  foiindem  and  fricndit,  and  confirmed 
and  illustrated  by  the  actual  practice  of  the  goremmeot.  llie  czpo- 
siliona  to  tw  found  in  the  work  are  less  to  be  regarded  as  my  own 
opinions  tban  bh  thoT  of  tin!  grvnt  niimla  wlih'h  framed  the  C-ousli- 
totion,  or  which  haio  been  from  time  to  time  caIIoI  upon  to  admiustcr' 
it  Upon  eabjects  of  government,  it  has  always  appeared!  to  me  that 
metaphysical  refinements  are  oat  of  place.  A  constitution  of  govern* 
tnent  Is  addressed  to  Uie  <'ommn».s«aac  of  the  jtvoplc,  and  never  wasi 
designed  for  truUs  of  I'^icul  skill  or  visionary  spccalatiom. 

The  reader  will  Mmetimes  find  the  same  train  of  reasoning  brou);ht 
before  him  In  different  parts  of  these  Commentaries.     It  was  indis 
ponanbic  to  do  so,  unless  the  dIscasAlon  was  left  Imperfect,  or  lh« ' 


PREFACE.  Zl 

reader  was  referred  back  to  other  pages,  to  gather  np  and  combine 
diBJointed  portions  of  reasoning.  In  cases  which  have  undet^one 
judicial  investigation,  or  wliich  concern  the  judicial  department,  I 
have  felt  myself  restricted  to  more  narrow  discussions  than  in  the  rest 
of  the  work ;  and  have  sometimee  contented  myself  with  a  mere  trans- 
cript from  the  judgments  of  the  court.  It  may  readily  be  understood 
that  this  course  has  been  adopted  from  a  solicitude  not  to  go  incident- 
ally beyond  the  line  pointed  out  by  the  authorities. 

In  dismissing  the  work,  I  cannot  but  solicit  the  indulgence  of  the 
public  for  its  omissions  and  deficiencies.  With  more  copious  mate- 
rials,  it  might  have  been  made  more  exact,  as  well  as  more  satis- 
factory. With  more  leisure  and  more  learning,  it  might  have  been 
wrought  np  more  in  the  spirit  of  political  philosophy.  Such  as  it  is, 
it  may  not  be  wholly  uselras  as  a  means  of  stimulating  abler  minds 
to  a  more  thorough  review  of  the  whole  subject,  and  of  impressing 
npoD  Americans  a  reverential  attachment  to  the  Constitution,  as  in 
the  highest  sense  the  palladium  of  American  liberty. 

Januabt,  1883. 


TABLE    OF    CONTENTS. 


Cases  Cited sxi 

The  CoN9TiTcno> ixxv 

FKELUIUfAHr  ClUPTER 3 


BOOK    I. 

niSTOBT  OF  THE  COLOMIEB. 

CHAPTER  I. 

BkUob 

Origin  and  Titie  to  the  Territory  of  the  Colonies 1-38 

CHAPTER  n. 
Origin  and  Settlement  of  Virginia 39-51 

CHAPTER  III. 
Origin  and  Settlement  of  New  England  and  Plymouth  Colony     52-CO 

CHAPTER  IV. 
Siaseachusetts 61-77 

CHAPTER  V. 
Kew  Hampshire 78-81 

CHAPTER  VI. 
Maine 82-8.1 

CHAPTER  VII. 
Connecticut 84-0;i 

CHAPTER  VIII. 
Bbode  Island 94-102 


/ 


XIT  CONTENTS. 

CHAPTER  IX. 

BwHoa 
Maryland 103-110 

CHAPTER  X. 
NewYoik ni-lU 

CHAPTER  XI. 

New  Jersey 115-120 

CHAPTER  XII. 
Pennsylvania 121-125 

CHAPTER  XIII. 
Delaware 126-127 

CHAPTER  XIV. 
North  and  Sonth  Carolina 128-142 

CHAPTER  XV. 
Geoi^a 14S-145 

CHAPTER  XVI.  / 
General  Review  of  the  Colonies 146-158 

CHAITER  XVII.  / 
The  Same 159-197 


BOOK    II. 

HISTOHT  OF  THE   REVOLCTIOS   AND  THE  COKFEOERATIOM. 

CHAPTER  I. 
The  History  of  the  Revolntion 198-217 

CHAPTER  n.  »' 
Origin  of  the  CMifederatioa 218-SS8 


k 


CONTENTS.  XV 

CHAPTER  in. 

BacUoD 

Analysis  of  the  Articles  of  the  Confederatioa 229-242 

CHAPTER  IV.  "^ 
Decline  and  Fall  of  the  Confederation 243-271 


BOOK    III. 

THE  COKSnTOnON  OP  THE  CMITED   ffTATEB. 

1^                                  CHAPTER  I.  ^^ 

Origin  and  Adoption  of  the  Constitution 272-280 

*  CHAPTER  II. 

Objections  to  the  ConstitQtiott 281-305 

%  CHAPTER  m. 

Nature  of  the  Constitution  —  whether  a  Compact ....    306-372 

CHAPTER  I^^ 

Who  is  the  final  Judge,  or  Interpreter,  in  Constitational 
Controversies 0  ^  ■     873-3!l6 

CHAPTER  V. 
Rules  of  Interpretation  of  the  Cocstituttou 397-456 

CHAPTER  VI. 
The  Preamble 457-517 

CHAPTER  VII. 
■  Distribution  of  Powers 518-544 

CHAPTER  VHI.  * 

The  Legislature 545-570 

CHAPTER  IX. 

The  House  of  Representatives 571-689 


XVI  C0NTBKT8. 

CHAPTER  X. 

■eelloB 

The  Senate 690-813 

CHAPTER  XI. 

Elections  and  Meetings  of  Congress SH-6SS 

CHAPTER  XII. 

Privileges  and  Powers  of  both  Hoases  of  Congress.     .     .        837-872 

CHAPTER  XIII. 
Mode  of  Passing  Laws  —  President's  Negative       .     .     .        873-904 


\j 


CHAPTER  XIV. 


4 


Powers  of  Congress  —  Taxes .      905-1053 


CHAPTER  XV. 
^^  Power  to  borrow  Money  and  regulate  cRnmerce     .     .     .     1054-1101 

CHAPTER  XVI. 

^\j  Power  over  Natnralization  and  Bankruptcy 1^2-1115 

# 

CHAPTER  XVII. 

N^ower  to  coin  Woney,  and  fix  the  Standard  of  Weights 
*--  and  Measures 1116-1123 

CHAPTER  XVIU. 
Power  to  establish  Poat-oflBces  and  Post-Roads  ....     1124-1150 

CHAPTER  XIX. 
Power  to  promote  Science  and  Useful  Arts 1151-1156 

CHAPTER  XX. 

Power  to  punish  Hracies  and  Felonies  on  the  High  Seas  .     1157-1167 

CHAPTER  XXI. 

Power  to  declare  War  and  make  Captures  —  Array  — 
Navy 1168-1198 


CONTENTS.  XVil 

CHAPTER  XXn. 

BwlUa 

Power  over  the  MOitia 1199-1815 

CHAPTER  XXTTf. 

Power  over  Seat  of  Government  and  other  ceded  Places  .     1216-1286 

CHAPTER  XXIV. 
*   Powers  of  Congress  —  Incidental 1236-1258 

CHAPTER  XXV. 

Powers  of  Congress  —  National  Bank 1259-1271  ^ 

CHAPTER  XXVI. 

Powers  of  Congress —  Internal  Improvements  ....     1272-1281 

CHAPTER  XXVII. 

Powers  of  Congress  —  Purchases  of  Foreign  Territory  — 

Embargoes 1282-1294 

CHAPTER  XXVIII. 

Power  of  Congress  to  punish  Treason 1295-lSOl 

CHAPTER  XXIX. 

Power  of  Congress  as  to  Proof  of  State  Records  and  Pro- 
ceedings           1302-1313 

CHAPTER  XXX.  , 

Powers  of  Congress  —  Admission  of  New  States,  and  Ac- 
quisition of  Territory 1314-1321 

CHAPTER  XXXI. 

— Powers  of  Congress  —  Territorial  Governments      .     .     .     1822-1330 

CHAPTER  XXXn. 
Probibltions  on  the  United  States 1331-1352 

^  CHAPTER  XXXIII. 

Prohibitions  on  the  States 1353-1373 

VOL.  I.  —  6 


XTUl  CDKTEnS. 

CHAPTER  XXXTf. 

Pndiibntioiis  on  the  States  —  Impsirii^  Ck>ntnctB  .     .     .    1374-1400 

J  CHAPTER  XXXV. 

IVohibitioofl  OD  (he  States  —  Tonnage  Datiea  —  Haking 
War 1401-1409 

CHAPTEB  XXXVI. 
Ezecntire  Department  —  Orgaaizatioo  of 1410-1488 

CHAPTEE  XXXVII. 
'  Executive  —  Powen  and  Datiea 1489-1572 

CHAPTEE  XXXVm. 

The  Jadici&ry  —  Importance  and  Powers  of 1573-1798 

CHAPTER  XXXIX. 

Definition  and  Evideace  of  Treason 1796-1803 

CHAPTER  XL. 

Privileges  of  Citizens  —  Fugitives  —  Slaves.     ....     1804-1812 

CHAPTER  XLI.    . 

^  Gnaranty  of  Republican  Govenunent  —  UocI^xuT^  Making 

Amendments 1813-1831 

CHAPTER  XLII. 
Public  Debts  —  Supremacy  of  CoDStitntion  and  Laws      .     1832-1842 

CHAPTER  XLIII. 

Oaths  of  Office  —  Religious  Test  —  RatiBcatioD  of  the 
CoostitntJon 18J3-1856 

CHAPTER  XLIV. 
Amendments  to  the  Constitution 1857-1909 

CHAPTER  XLV. 
Concluding  Bemaik* 1910-1914 


CONTENTS.  XIZ 

CHAPTER  XLVI. 

The  Emancipation  of  the  Slaves 191&-1927 

CHAPTER  XLVII. 
The  Fourteenth  Amendment 1938-1968 

CHAPTER  XLVIIL 

Impartial  Suffrage  —  Conducing  Remarks 1969-1974 


■^ 


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c.  t'ei>n*>lvMiia                            i.  710     ^^H 

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^H                V.  Ohio                               H-  S3,  Kl 

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Jennicigi  r.  CnnOB                L  387    U.  466    ^^M 

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r.  Helctier                                   ft.  S»    ^H 

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o.  UnitiHl  Staita                       ii.  870         ■ 

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^^H     Ilunli'  IWIo                                    0.600 
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^^^K    Lake  r.  Rallini                                     1.  800    MrConnell  <'.  Hampden                     H.  110      ^V 

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^^^^^^^^^^^^^P              QXtU                                                                                   1 

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nKudMH)                                      LIIS'^H 

^H            Trntorl.  /n  n                                      ii.  188 

r.JonM                                B.56».60tt    ^H 

^H            Tmnop*  F.  Tntmu               i.  SM :  ii.  S08 

r.  Kirkpiirick            a  SOa,  370.  381    ^H 

^H           Tfiuuwaot  ViDwnnet  Unlrortiij 

T.  Khln                                         IL  338    ^M 

^M               V.  IixliBU                                         U.  260 

t.  IjincaMar                              L  112   ^^1 

^H            Tna  D.  CirTii>re                               Ii.  Clt,  &6 

V.  Lalhmp                                    ii.  637    ^^| 

^H           TaclMr  f .  I'urxnt^n                         II.  2B8 

f.  U  Baran                       U.  878.  S70   ^H 

^1            Timer  p  Mar;  laud             1-  T»l>.  TW.  742 

■>■  I.M                                a  474. 489   ^M 

^K                   ».  Sum                            1.  T4!i  1  il.  331 
^^^     Tamfr,  /■  r.                       11.  67%  874.  TSB 

0.  Llttla                                    ii.  897   ^H 

».  HcLtnim                            U.  474  ^H 

^^^B    Tumnike  Co.  r.  Auto                      U.  Sfi6 
^^^^     Turptn  p.  Barg*^                               i.  7K 

■>.  Mangold                                a  08  ^H 

e.  Mandia                                     iL  00   ^^M 

^H           TiritclwU  r.  CoaiiaaiiwMtth              U.  e&l 

v.Mcmphit                             ll.atO         ■ 

^M            Two  Prlendi.  Tli«                              ii  470 

e.  Hnore                                   IL  600    J 

^M           Tykrr  r.  Dcfmr*                                   ii.  M 

*.Morrii                               as^OUO  ^H 

^H            Tytoa  V.  School  Direchm                 a  70S 

n.  HoCTiaon                                  11.  073   ^^| 

^^1 

»,Na»h                                     (LtHS   ^^ 

^^B 

F.  Nl>«  Bodfonl  Bridm    L  112;  It.  IT           1 

^H           Un*TT '-  Conminnoeallb                 IL  696 

v.  Naw  Orlaani                         il  2(0    M 

^M            UodMwood  r.  L;:iy                            IL  704 

e.  Ortei[>              i.  40S.  401.  Eftlv  0V7    ^B 

■           Unloa  Bank  r.  UUl                          1. 767 

r.FalmBr                              a«84.38&  ^H 

■                 r.  RutB                                    U  2T4 

0.  PrKRr.Tlw                              iL  000   ^H 

B            nnlon  loo.  Co.  r.  KM!                       i  SIS 

r^  Pom                                        U.  600   ^^H 

H            Unloa  Rv.  Co.  «.  DriladetoUA  a  «T.  988 

P.  r««*ri                       «.  483, 402.  688    ^V 

^m           tlnitol  SiaUa  v.  AmOoMO             B-  408 

B.  llratoi                                   fi.  pg         ■ 

^■^            <-.  ttii;«y                                    11-  ** 

p.  Flantera'  Bask  of  Otontia    ii.  467,           1 

^^K            iLRalaaaf  OoUoii,mi             IL^OT 

mm 

^^■^    ■t.Barktr                                 a  306 

a.  Railroad  Btidge                      U.  ly         ■ 

OABBft  OtttD. 


xxxm 


I  8Wm  r.  lUtam 
B.It*Me 
«  BIwdM 
e.  ttihj 
B.  Smith 


iLTlfl 

li.  OTS 

It  a,  HO 

H  n,  80.  Ml 


«.  -nag«r  IL  148,  ITU.  308 

«.  Totooco  rwtorr  U.  8S0. 01 1 

K  Dirioa  I'MUk:  K.  Co.        U.  401,  t06 
K  ^IWo  li.  K 

«.  WaddeP  ii.  T16 

■L  Wbi>k*jr,  43  gkUoni  of         U.  COS 
».  Williun,  TIio  1.  TS7 ;  ii.  171 

*.  Vniim  Pom.  The  IL  23 

«.  WUmr        riU;  II.MS.  378,  472. 

».  WntbMfer  U. 

V.  Woiuon  U.  67& 

UnirtnitT  of  Vlnioi*  v.  for  U.  248 

u.m  >.  ium  il  «3 

VadtiA  *■  Ia«m  U.  168 

LTu  All«ci  r.  AjMMm  L  767 ;  U.  2 

BokalM    *     Drooltlvn     Cltr 

R  R.  Co  U.  67G 

Fan  Cmd|i  r.  Board  of  Bduntioa    tL  717 

ITuMe  p.  Vane*  li.  SSe 

iTanidrrbilt  a.  Adnna  ii.  701 

ITanlcrhejrODD  <-.  Yauns  ii   121.  122 

Vaiulen-iarit  i-.  StnJtb  li.  lt<I 

Van  UolToan  r  <iaiairr  ».  3M.  267 

Vaa  Kura  r-  Dofraooe  ii-  670 

Van  Mew  «.  I^wkanl  i.  110,  111 

Tan  Renaaolaer  ■>.  Eoantejr  ii.  6T6 

•  Snyder  liUT 

Tan  VliM.  /k  n  U.  £ 

^uauii  ■■■  waddca  a.  mt 

^«ula  «.  UooT  IL  10.  St,  W 

raaila  Baak  «.  Fwhw      i  701. 764. 767 ; 

U.  37.  m 
Ta«tMiiM.  U  li.  400 

VIekabMK  ».  Tobin  1.  7SS 

Vbsliii*  «-  tUica  il.  t»i 

V.  TTtM  Vir^ia  ti.  377, 278, 460, 60O 
1rfiala.£ruirfa  ILOSl 

_   livlnUCIaaM  «.  lU? 

TtrRinia  CoujMia  C*Mt  U.  Stt 

T1t«uIi  .-.  ItKkvr  II.  a»4. 4dB 

VolDBWtr,  -nia  IL  40O 

tWilMub  *  Erie  Canal  c  B««n        ii.  366 

rabaali  R.  Ca  •.  Dikiala  il.  4 

Falkar  n  f%nH*rlrartU  ii.  ^1 

BL  SaavlMt  il.  est 

n  milrcbcad  II.  249.  SM.  267 

r.  Wfaittier  li.  187 

Wall,  Ki/nn,  IL671 

hWatlac*  •>.  UeCOMwn  tL  S88v  689 

nraOlBt  ■>.  Hichlni  li.4,IS.I& 

ralIrS  lUra  r.  KMiiMdr  IL  S92 

WalMon  r.  Contmonwaalth  II  231 

V.  HcTln  a  6M.  061 

Ward  r.  Marjland  L  TSS ;  iL  U,  fM.  esi. 

738,780 
roL.  I. — e 


Ward  c  Praeior  11.  M 

«.  Su[«  IL  6M 

Wan  •>.  llrlion  i.  168. 187,  M4.  SCO,  3H. 

S3S,»7.  868:  d. M», 4198, 670. 0Q6, MS 


Warloc  I-.  Ctark 
c  Jackion 
r.  Tbo  Mayor 
Wartwr  b.  Fvojila 
Wamn  B.  HcCanhr 

•.PmI 
Warren  Manvf.  Co. 

Co. 
Warwicic,  The  Amy 
Waahlnini,  In  rt 


U.  460, 473,  «3» 
U.67S 
1.760 

1. 904;  ii.S6e,aos 

1L103 
t767 
r.  Jia»    In*. 

a.  101. 683 
ii.  w 

ii.68T 


Waaliinglaa     CmtMvl^    b.     Bo«w 

iL26» 
Waaon  «.  Walter  L  031 

Watkiiu  p.  Huliuan't  Ltawo  il.  704 

WatMui  e.  Mercer      ii.  £».  321. 3M,  373, 

704 

p.  K«i>   York  C«nml  R  R.  Co. 

11.967 
Warmaa  e  Soothard  il.  688, 6M 

W«arcr  r.  Uptley  iL  111.  C7I 

Webber  r.  Virginia  U.701 

Week!  P.  IbtiiwaukM  i.  303 

Wetoh  p.  Wadaworth  iL  706 

WeUi.  £rn<irftf  11.07 

Wellon  r.  Sliraniri      i.  7aS  ;  IL  12.  IS.  S» 
Weatorn  Union  T«L  Co.  b.  Findlatoii  iL  4 

p.  Texaa  ii.  4 

Waiieprell  r.  Gresg  li.  ON,  70O 

Wpitetwclt  IV  I.OWU  li,  193 

We>;on  V  CHatioion    IL  3.  630,  640,  ni3 

It,  City  Covnca  of  Charialoit     I.  767 
Wwt  Kirer  Briiln  Co-  p.  Dlx         1. 312 : 

ILa» 
Wh«alon  1^  Fctm  L1M.683 

WhMliDR    Traiupartetian      Co.    e. 

WhMlioB  1.  TS8 

Wkllop.  iGvt    U.  247, 2».  274,603,070. 

710 
WMte'»  Bank  e.  Smith  IL  23 

WhitebrMd  r.  Rtgim  U.  «7 

Wicfc  r.  Tbo  Samuel  Stnof  IL  676 

Wigciii  e.  UMMd  Sum*  I).  670 

WHoox  B.  JaokMD  K. «»,  676 

V,  Rodman  IL  3K 

wnkM'i  CaM>  L  ON 

Wllki<i*on  e.  LeUud  il.  SIS,  37*.  274. 000. 

706 

p.  Utah  iLeao 

WiUiam.  The  li.  8 

Wiiliaoii  V.  Brnfly  0.  940 

r.  HaiDM  ii.26T 

p.  Kirkland  11.  676 

p.  feylon  H.  708 

P,  Wiekeman  IL96 

WlUlamuin  ■'.  Su/dam  IL  706 

e.  WlUlarawn  IL  706 

WnmtnflMi  It.  C».  >  Bfeif      H.  246, 944 

r.  RcM  U.  S47, 2BB 

WHaon  V.    BladiUtd    Creek    Marmh 
Co.  it  16,  23 


XXXIT 

CASH 

CITED. 

»»^ 

ff 

WUwn  v.  Brown 

iL3U 

WoroMtM  >.  QaorfiB 

1108,101;  iL0, 
43 

B.  Mwon 

ii&38 

D.  McMbidm 

■L14 

0.  Norwich  B.  Co. 

iL869 

WjllOD,  Ex  putt 

iLfioa,ee4 

Wwk  D.  Eute 

ILUO 

WUmh,  Tb* 

iL2« 

Work*  «.  JonctioD  B.  B.  Co.             ii.  19 

Winter  v.  Jones 

11263 

iLl92 

Wiacmrt  F-Dmncbr     ii. 

GOl,  608,  640i  660 

a.  Deacon 

aesQ 

WiBcomio  v.  Duloth 

iL  le,  17, 21 

F.  Defree* 

ii.  37 

Wiie  B.  Witbels 

U.4M 

WnttiD.  Hoagland 

iL681 

Willier*  B.  Buckley 

ii.26,e69 

Wf  nahamer  v.  Peofde 

isae:ii.eM,7os 

Wout  >.  WinDick 

u.a3i 

Wood  D.  WatkiuoQ 

ii.  192,  IM 

Wood  li  nil  F.  Wagtier 

iL6«,an 

iL716 

Woodmui  D.   KUbouni 

Mannt  Co. 

LK3 

iLlfl 

TiMoQii.  Frj 

iLlST 

Woodrufl  e.  Parham 

L  786, 749 1  ii.  15. 

Terger,  Ex  paiu 

L290 

2X686 

ii.68l 

v.TnpiuU 

iL  286, 963 

Toik  p.  TexM 

ii.6n 

CONSTITUTION 

THE  UNITED  STATES  OF  AMERICA. 


Wb,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  eatabliBh  Juetice,  insure  domestic  tranquillity,  provide 
for  the  common  defence,  promote  the  general  welfare,  and  secure  the 
blessingB  of  liberty  to  onrBelves  and  our  posterity,  do  ordain  and 
establish  this  Constitution  for  the  United  States  of  America. 

ABTICLE  I. 

Sectioit  1. 

1.  All  legislative  powers  herein  granted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall  consist  of  a  Senate  and  House 
of  Representatives. 

Skctioh  2. 

1.  The  House  of  Representatives  shall  be  composed  of  members 
chosen  every  second  year  by  the  people  of  the  several  States,  and  the 
electors  io  each  State  shall  have  the  qnaliflcatione  requisite  for  electors 
of  the  most  numerous  branch  of  the  State  legislature. 

2.  No  person  shall  be  a  representative  who  shall  not  have  attained 
to  the  age  of  twenty-flve  years,  and  been  seven  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of 
that  State  in  which  he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned  among  the 
several.  States  which  may  be  included  within  this  Union,  according  to 
their  respective  numbers,  which  shall  be  determined  by  adding  to  the 
whole  number  of  free  persons,  including  those  boand  to  service  for 
•  t«rm  of  years,  and  excluding  Indians  not  taxed,  three  fifths  of  all 


ZZXIT 

OASES 

OITBD. 

P»* 

F>W 

WUm)d  d.  Brown 
V.  Huoo 

U.3G8 
ii.  63S 

WoroMtar  V.  0«orglB 

tUMOTi  U.4^ 

V.  McMUDM 

iLM 

e.  Norwich  B.  Co. 

Ii.  260 

Wilson,  £x  parU 

ii.  e6a,e6i 

Work  i>.  State 

0.660 

WUtoD,  Tbe 

ii.24 

Work!  V.  JunctloD  B.  B.  Co.               a  10 

WlnUr  V,  Jonei 

iL263 

Wrifht  D.  Andrew! 

U.1B2 

Wiicart  cDsnchj' 

li.  GOt,  603, 640, 666 

H.  Deacon 

a689 

WlKOMin  V.  Dtilnth 

il.  16, 17,  31 

a.  DefresB 

ii.  S7 

Wlra  D.  Wither! 

ii.«M 

WattM  a.  Hoaglsnd 

IL681 

WiUien  D.  Bockley 

U.  26, 669 

Wf  nohamer  o.  People 

LSS6;  11604, 702 

Wout  ■.  Winnlck 

U.a31 

Wood  V.  WftOcinian 

ii.  102,  IM 

Woodhull  c.  Wftgner 

A.6a,xa 

Ttfboroagh,  Ex  port* 

il.718 

WoodmaD  v.   lUbourn  Uanuf.  Co. 

Tate*  K.  Luuinf 

1.623 

il.  IS 

YeatoD  B,  Fry 

ii.  187 

Woodrufl  V.  Farbam 

i.  786. 749 ;  ii.  16, 

XtTger,  Ex  parte 

L290 

2^686 

Tick  Wo  D.  Hopkioi 

11.681 

v.Tnpnall 

iL  386^  SUB 

Tock  e.  Teu! 

iL671 

CONSTITUTION 


or 


THE  UNITED  STATES  OF  AMERICA. 


Ve,  th«  people  of  tbe  United  SUU^r,  In  order  to  form  k  mora 
perfect  iintoD,  csUMinh  juKtioo,  inKtirc  doinntic  Iranqaillity,  provide 
for  tbe  common  dcfenoe,  promote  the  general  welfare,  and  secare  tbe 
bleaungB  of  liberty  to  oonelTes  and  oar  posterity,  do  ord&in  and 
osUUisb  this  Constitution  for  tlie  United  States  of  America- 


ABnCLE  I. 

SEcnox  I. 

1.  AH  l*st«tntlTe  powers  iMreiu  granted  «hall  be  vested  In  n  Con- 
greM  of  the  United  States,  vrhicb  shall  coDHist  of  a  Senate  and  House 
of  RepresentativeB. 

Sectios  2. 

1.  Tba  FIouM!  of  RepreKcntatirc«  tdiail  lie  cooposcd  of  memlwrs 
cbosen  every  Kccon<l  year  by  tlic  people  of  tbe  Hcrcrnl  States,  and  the 
electors  in  each  State  shall  bare  the  qualiReationK  reqoisite  for  oleclors 
of  the  most  DomcnMis  branch  of  the  State  legistnliirc. 

i.  No  person  shall  be  a  representative  who  shall  not  have  attained 
to  the  age  of  twenty-fire  years,  and  been  seven  years  a  dtuen  of  the 
United  Slates,  and  who  shall  not,  when  elected,  be  on  lubahitout  of 
that  State  in  which  be  shall  be  dtoaen. 

S.  RoprviWDta tires  and  direct  taxea  shall  be  apportioned  amoni;  tbe 
Screra)  Stnlca  which  may  lie  included  wttbin  ihht  Union,  according  to 
their  respecUve  nonihcre,  whi<'h  shall  l)C  dcteminml  by  adding  to  tlie 
whole  oannber  of  free  persons,  indiiding  those  boniMl  to  service  for 
a  term  of  years,  and  excluding  Indians  not  taxed,  three  fifths  of  all 


XXXTl 


THEi  coNsnnrtioH. 


other  p«r»0Ds.     Tbc  iu;tiiitl  eoumentioo  bI»I1  be  made  vjUtin  Umo 
yean  afUr  tlic  flrxt  mvvting  of  tbu  Congrcvs  of  tbc  L'iiit«d  Sutcs,  ukI 
within  every  Htibacqitetit  U-rni  or  ten  J9*n,  in  eucli  maDDc^r  aa  ibeym 
eliall  by  Uw  direct.     Tliu  Dumber  or  repros«ntativoe  tfh&ll  not  esceed' 
one  for  every  thirty  thousaud,  but  each  State  ehall  bare  at  lesat  oae 
representative ;  and,  uutil  euch  enumeration  ehall  be  made,  tlie  State 
of  New  tiampsliire  shall  be  entiUed  to  cbooae  three,  Maaaachuaette 
eight,  Rhode  lalaud  and  Providence  Plantations  one,  Coanecticnt  fire, 
Nrw  York  nix,  N«w  Jeraey  four,  Pennaylvaoia  eight,  Delaware  ono,j 
Muryluad  his,  Vir}i;inia  ten,  North  Carolina  five,  South  Caroltoa  fiv«f-^ 
and  Georgia  thre«. 

4.  When  vacand««  happen  in  the  repreaentattOD  from  any  State, 
the  executive  authority  thereof  shall  isane  writs  of  election  to  fill  such 
vacandc*. 

&.  The  Homo  of  KrprcMntativea  shall  choose  Ihelr  speaker  and 
other  offloers,  awl  ehall  liave  the  sole  power  of  impeachueak 


Sbctiox  S. 

1.  The  S«nat«  of  the  UDfted  Stales  ehall  be  composed  of  two 
senators  from  each  State,  cboseo  by  the  le^isUture  tbervof,  for  six 
years ;  and  each  Beoator  shall  have  one  rote. 

i.  Immediately  after  they  shall  be  sssemMed.  bi  conseqaeDcc  of  the , 
Brst  elecUon,  they  Bball  b«  divided  as  eqcaUy  as  may  be  into 
rlansw      The  seats  of  Uh  ssnatocs  of  the  lint  class  shaU  be  ri 
at  the  expiration  of  the  wcood  year,  of  the  seeoml  cUss  at  the  i 
ratioa  of  the  fourth  year,  and  of  the  third  class  at  the  expiration  ol 
Um  sixth  year,  so  that  one  third  naj  be  choaeo  every  second  year  p 
tad  if  vacancies  happen,  by  rengaatioii  a*  otherwiae,  dorit^  tbc 
recess  of  tbo  U^rislature  of  any  State,  the  cxaoittm  thereof  may  naki 
Hn^MHary  appointments,  until  the  next  tiwiKfwg  of  the  legialatiii*,^ 
vkkh  shall  thM)  Sll  BQi^  Taeanedes. 

3.  No  person  shall  be  a  senator  who  sball  not  have  ftitnti  to 
age  of  tluity  jeaia,  aad  been  nine  years  a  dlJuB  of  the  United  St 
snd  who  shall  not,  wtten  elected,  be  aa  iahafaitaat  of  that  State  for 
wUdi  In  shaD  ba  cfaeaea. 

4.  Tbe  TIee-PrsfidMit  of  tbe  United  States  sfaail  bt  prsaident  of  t 
Senate,  bat  shall  hate  no  vote  iintwss  tbay  bt  equally  divided. 

A.  Tbe  Senate  shall  choose  tbctr  othsr  oOctiT,  and  also  a  j 
pra  Mnpsra*  »  t^  alwsoca  U  tba  Tins  Pwaitkot.  or  wfam  be 
sx«fd>«  the  ollka  of  Fiwidciil  of  tbe  Uaiisd  Statca. 

5.  Tba  Scaat*  Aall  hav*  the  sols  powar  to  try  all 
Whea  sttiag  foe  that  pwpoea.  thsy  shall  b«  oa  oath  or 


THE  coNsmu-nos. 


XXX  TU 


'When  tbe  Pneident  of  ihe  United  .States  Is  tried,  the  chtef  Jostk* 
thall  [ircxidc ;  and  no  pL-nkon  dhal)  be  convicted  uritbout  the  conoor- 
reoce  of  tiro  tliinU  of  itie  iDctDlnrni  i>n«ei>t. 

I.  Judgment  in  ca»««  of  im|>cachmciit  »Iui)l  not  ext«n<l  rurther  Hum 
to  remoT&l  from  ofBoe,  and  diaqunlificittion  to  lioUl  ntiil  cnjojr  tay 
office  of  honor,  trust,  or  profit,  under  the  L'nitc<l  st.tt<.>9i;  hal_tlie 
partjr  conricted  shall  neverthelesa  be  liable  and  subject  to  indictment, 
trial,  Judgment,  and  punishment,  according  to  law. 

Sxcnox  4. 

1.  Tbe  times,  plaoce,  and  manner  of  bolding  elections  for  stDator* 
aiMl  repn'Sfiilativos  mIiuII  tje  prescribed  in  eadi  State  by  tbe  IcgislalDre 
thereof ;  but  the  Congnwi*  ninj  at  any  time,  by  law,  make  or  alter  such 

[  r^ulations,  except  w  to  tbe  place*  of  choosing  senators. 

2.  The  CoDgT^Hs  shall  otuemblc  at  leant  oum  Id  every  year,  and 
mcb  meeting  shall  be  on  the  first  Monday  io  December,  uulesa  they 

;  Bkall  by  law  appoint  a  different  day. 

Sscnosi  5. 

1.  Each  house  Bhall  be  the  Judge  of  tbe  elections,  retams,  and 
qnaliflcatiODS  of  its  own  members,  aod  a  majority  of  each  shall  con- 

'Btitute  a  quorum  to  do  business ;  but  a  smaller  number  may  sdjuurn 
from  day  to  day,  and  may  be  authorized  to  compel  the  att4>iKlance  of 
abaent  mcmlwrs.  in  sucli  manner,  and  onder  such  penaltie*,  as  each 
bouse  may  provide. 

2.  Each  house  may  determine  the  rales  of  its  proceedings,  punish 
its  members  for  disorderly  behavior,  and,  with  the  concouenoeof.two 
thirds,  expel  a  member. 

3.  Each  house  shall  keep  a  Journal  of  Its  proceedings,  and  from 
time  to  time  publish  Uic  same,  cxcrplin);  such  parts  aa  may,  in  tfaeir 
Jtulgment,  retjulre  secrecy ;  and  tbe  yeas  and  nays  of  (be  members  of 
cUber  house  on  any  iiaestioa  oball,  at  the  desire  of  one  flflh  of  thoee 

'  pnMDt,  be  entered  on  Uie  Journal. 

4.  Neither  Iiouse,  during  tbe  sessioo  of  Congress,  shall,  without  tbe 
OOB^nt  of  the  other,  sdjoom  for  more  than  three  days,  nor  to  any 

f  Atbtr  place  thsn  tbat  In  which  tbe  two  bouses  shall  be  sittiqg. 

Swrnojt  6. 

1.  The  scnatora  and  representatives  shall  receive  a  compensation 
for  their  serriecs,  to  be  ascertained  by  law,  and  pud  oat  of  the  treas- 
ory  of  the  United  States.  They  shall,  Jn  all  cases,  except  treason, 
felony,  snd  breach  of  the  peace,  be  privileged  from  arrest  during  tbeir 


XXXTUI 


TBB  COKSrmmOK. 


kttondaiMe  ftt  tbe  naaioo  of  tbdr  tespective  bouaeft,  uid  la  going  to 
uid  returning  rrom  the  sam«  ;  aod  for  aujr  speiedi  or  debate  in  eitbcr 
bouse  tbey  aiuiU  Dot  be  quealioned  id  auir  olhei-  ylact. 

2.  No  senator  or  KpreMQlative  sliall,  during  lliu  tints  for  wbkh  be 
wtM  elected,  be  ap|M>iut«l  to  xiiy  civil  ollk-c  uodur  Ibe  authohl;  of  tbe 
l)iiitc<l    St«l«H,   wliivb    xhrnll    bare  been  created,  or  the  emolum«DtaJ 
wbcrt-of  itliall  have  bi-vn  increased  during  aucb  time ;  and  iio  person 
botdiog  an;  office  under  the  United  HtMee  elull  be  a  member  of  eitbes] 
booM  during  his  continuance  in  otOce. 

Sscnoic  7. 

1.  All  bills  for  raining  rercnuc  shall  originate  in  the  House  of 
Kepr«8entativ«e ;  but  the  Senate  ma;  propose  or  ooncnr  trith  amcnd- 
■Kuts,  as  OD  other  bills. 

2.  Every  bill  nliicb  aliall  bare  passed  the  House  of  Repiesentadves 
and  the  8«nale  slmll,  before  it  become  a  taw,  be  presented  to  the 
President  of  the  L'nitod  States ;  if  b<-  approve  be  shall  s^  it,  but  If 
not  be  eball  return  it,  with  bt*  oliJ<>ctioits,  U>  tliut  hmieic  in  nbich  it 
shall  have  originated,  who  shall  enter  the  objectionH  at  lai^c  on  tbeii 
Jotimal,  and  proceed  to  reconsider  it.     If,  aflcr  such  reconsideration, 
two  thirds  of  that  house  shall  agree  to  pMn  the  (nil,  it  shall  bo  sent, 
together  with  the  ob}eotH>DS,  to  the  oth«r  house,  by  which  it  shall  like-i 
wise  be  rcconitidered,  and,  If  approved  bj  two  thirds  of  that  bouse,  ilj 
shall  become  a  law.     But  in  aH  such  cases  the  votes  of  both  boas 
shall  be  dctcmintd  b;  yeas  and  nays,  and  the  names  of  the  penoDlj 
voting  for  and  against  the  bill  shall  be  entered  on  the  Journal  of  eachi 
house  respectively.     If  any  bill  shall  not  be  retumnl  by  the  Pmideut 
within  ten  days  (Sundays  exccptctl),  after  it  shall  bare  t>ecii  presented 
to  bim,  tbe  same  kIibII  be  a  law,  in  like  niunoer  as  if  be  hod  signed  it, 
onleea  tbe  Congress,  by  their  adjonranient,  prevent  its  return,  in  wtuchj 
case  it  shall  not  be  a  law. 

8.  Krery  order,  resolution,  or  role,  to  which  the  concnrrence  of  tlw 
Senate  and  noiisc  of  KepresenUtirce  may  be  n«cessary  (except  on  a 
question  of  adjournment),  shall  be  {»«seitted  to  the  President  of  ths 
United  States ;  and,  before  the  sane  ahall  take  effect,  shall  be  ap- 
proved by  bim.  or,  being  disapproved  by  him,  shall  be  repassed 
two  tfainls  of  tbe  Senate  and  Honse  of  Representatires,  aecordliig  Ml 
the  rules  and  limlutious  prescribed  in  the  case  of  a  hull. 

Sectiox  8. 

The  Congress  shall  have  power,  — 

I.  To  lay  and  collect  taxes,  duties,  imposts,  and  exriaes,  to  pay  the 

debts  and  provide  for  tbe  common  defence  and  general  welfare  of  the 


ran  CONtmtDTlOK. 


xxxtx 


Unhed  Sut«fl ;  bat  all  <latieK,  im{>o«u,  and  cxcdnt  Bhal)  be  onifMin 
tltrODgbont  ttMi  United  States : 

it.  To  bonow  raoucy  od  the  credit  of  tbe  United  Stat«e : 

8.  To  r«gnl&te  commerce  wiUi  (oreign  natioue,  and  among  U»e 
eereral  States,  ami  with  the  Indian  tribes : 

i.  To  establish  an  uoifonn  rule  of  natuialUatioo,  »ii<l  uniform  lawn 
OB  the  eultject  of  baokniptciea,  ihroo^hout  the  United  htiit«K : 

&.  To  coin  money,  regulate  the  vidue  thereof,  and  of  foreign  coin, 
and  Bx  lh«  Mandaid  of  weigliU  and  meiuiurea : 

6.  To  provide  for  the  punisbnwnt  of  oountttrfeituig  the  securities 
and  ciirreDt  coin  of  the  United  8taUw: 

7.  To  establish  (wst-offlces  and  post-road* : 

8.  To  piomote  the  piogr«e8  of  science  and  twefol  arts,  by  securing, 
ioT  limited  l)uic;i,  to  authors  an<l  Inventors  the  exoiuaive  right  to  their 
respective  vritiiifCM  and  dtncoverieai 

6.  To  comiliUitc  trilninaU  inferior  to  the  Supreme  Court : 

10.  To  deflne  and  punii-h  piracies  and  folonicK  committed  OQ  the 
high  Mas,  BDd  offences  a^aioBt  the  law  of  nations  i 

11.  To  declare  war,  grant  letters  of  marque  aod  reprisal,  and  make 
rale«  concerniDg  ca|>tures  on  land  and  water : 

12.  To  ratiie  and  support  arrolea,  but  no  appropriattoo  of  money  to 
tlist  mat  shall  be  for  a  longer  term  than  two  yean ; 

13.  To  provide  and  maintaiD  a  navy  : 

14.  To  make  rules  for  the  government  and  regulatioD  of  the  land 
and  naval  forces : 

15.  To  provide  for  calling  forth  tbe  mililla  to  execute  the  law*  of 
tbe  Union,  aiippreMa  iiwurrections,  and  repel  uivasiona : 

16.  To  provide  for  or^aniKtng,  arming,  and  diiK-iplining  th«  militia, 
mud  for  governing  such  part  of  tbt-m  as  may  be  employed  ia  the  ser- 

of  the  fnltod  States,  reeenring  to  the  States  respectively  the 
[sppoinlment  of  the  olHcers,  and  th«  aatborlty  of  traming  tbe  militia 
*  according  to  lh«  discipline  presolbed  by  Congress: 

17.  To  exercise  exclusive  leglslatioo  in  all  caaea  whatsoever,  over 
^nufa  distrin  (not  exceeding  ten  mtlrit  M|u:tre),  a»  may,  by  cession  of 

ticular  states,  luiil  llic  acceptance  of  Congress,  become  the  seat  of 
the  government  of  the  Unit^  States,  and  to  exerciiw  like  authority 
over  all  places  purchased  by  the  consent  of  tbe  legislature  of  the  State 
in  which  the  same  shall  be,  for  the  erection  of  forts,  magazines,  arse- 
nals, docfc-yaids,  and  other  needful  buildingB:  —  And 

18.  To  make  all  laws  which  shall  be  oeceasary  and  proper  for 
tarrying  into  execnlioo  the  foregoing  powers,  and  all  other  powers 
Teflteil  by  this  Constitution  in  the  government  of  the  United  Stale*,  or 
in  any  department  or  officer  thereof. 


THE  C0N8T1TUTI0K. 


Sectiox  9. 

1.  The  migratlOD  or  iinporUtlon  of  siieh  pcmoM  m  any  of  the 

I  States  now  existing  sball  think  propnr  to  ailinit  khtiU  not  bv  |>roIubite(t 

bj  the  CongreBa  t>rior  to  the  juar  oim!  tlwiutincl  eight  bniulred  and 

eigkt,  iMit  a  tjuc  or  duly  may  be  impoMd  on  aacfa  importation,  not 

exceeding  l^n  dollan  tor  i-acli  jM-raon. 

i.  Tliv  iirivilc^i'  of  thif  writ  of  habta*  corpta  shall  Dot  be  anspendedt 
onlow  wbcD  in  canca  of  rebellion  or  inraeioD  the  public  safe^  may 
rvqiiirc  it. 

3.  No  bill  of  attainder  or  ex  poM  facto  taw  shall  be  paused. 

4.  No  capitation,  or  other  direct  tax  alioll  be  laid,  itnlera  in  propor* 
tlou  to  the  oeiMtM,  or  enameratlon  hereinbefore  directed  to  be  taken. 

6.  No  tux  or  duty  shall  be  bii<l  oo  article*  export^  from  any  State. 
No  preference  aliall  be  givt^n,  by  any  rEgulatioo  of  commerce  or  rave* 
nue,  to  the  |>oTtn  of  one  8tatc  over  those  of  another ;  nor  shall  veasela 
bound  to  or  from  one  State  be  obliged  to  enter,  clear,  or  pay  dudea  in 
another. 

6.  No  money  shall  be  drawn  from  the  treanuryi  but  In  conftequcoce 
of  appropriations  mode  by  law ;  and  a  regular  iitstenieul  aiid  account 
of  the  recelpu  and  ex{>eDdilure»  of  all  public  money  shall  be  ]>ublished 
from  time  to  time. 

7.  No  title  of  Dolnlity  shall  be  granted  by  the  United  States :  Aad 
no  person  holding  any  office  of  pty>flt  or  trust  under  tbem  shall,  wtthoat 
the  consent  of  the  Congress,  accept  of  any  present,  emolumeut,  office, 
or  title  of  any  kind  whatever,  from  any  king,  prince,  or  foreign  state. 

^Ecnox  10. 

1.  No  State  ehall  enter  into  any  treaty,  allianee,  or  confederation ; 
grant  letters  of  marque  and  repriHal ;  coin  money ;  emit  bills  of  credit ; 
make  anytbiog  but  gold  and  silver  coin  a  tender  in  payment  of  debts ; 
pase  any  bill  of  attainder,  expostfario  law,  or  law  impairing  the  obli- 
gation of  contjttctjt,  or  grant  any  title  of  nobility. 

2.  No  Slate  sh.ill,  witbout  the  consent  of  the  Congress,  lay  any  Im- 
posts or  duties  on  imjmrts  or  exports,  except  what  may  be  absolul^y 
necessary  for  executing  its  inupcctioii  laws ;  and  the  net  produce  of  oil 
dotics  and  )nii>oKta,  laid  by  any  State  on  imports  or  exputtA,  alioll  be 
for  the  use  of  the  treasury  of  the  Unitod  States ;  and  all  suoh  laws 
•hall  be  subject  to  the  revision  luid  control  of  the  Congrtss.  No  State 
shall,  without  the  ooDsent  of  Congress,  lay  any  duty  of  tonnage,  keep 
trootM,  or  «liips  of  war,  In  time  of  peace,  enter  into  any  agre«m€Dt  or 
coiD|)«ct  with  another  State,  or  with  a  foreign  power,  or  engage  in 
war,  lUtlesK  actaally  invaded,  or  in  such  imminent  danger  as  will  not 
admit  of  delay. 


THK  OONSTmrnON. 


zU 


■ 


ARTICLE  n. 

Sscnox  1. 

1.  The  esecnliTe  power  ehall  be  vested  in  a  Praeident  of  tbe  United 
8tAt«ti  of  Auii-rtcx.  He  shall  hold  his  oillce  during  tbe  term  of  four 
yitm,  and,  tu^vtker  wltli  the  Vke>Prei>idejit,  clioMn  for  tbe  wuii« 
Una,  be  elvrtod  lUt  fi^tlowtt :  — 

2.  Each  State  sludl  a{>i>oiDt,  in  siicb  manner  aa  Uk  kgiaUture 
thereof  ma;  direct,  a  nomber  of  electors  equal  to  Uie  whole  number 
of  Bcnatora  and  repreoentalives  to  nbicfa  tbe  State  ma;  be  entitled  in 
tli«  CongrcM ;  bat  no  wnntor  or  representative,  or  iier^on  holding  an 
onice  of  tjusl  or  proflt  under  Uiu  United  States,  shall  bo  aptiointed  an 
elector. 

3.  The  electors  shall  meet  in  their  mpectire  State«,  and  rote  by 
ballot  for  two  persona,  of  whom  one  at  least  shall  not  be  an  inhabitant 
of  the  same  State  with  themselves.  And  they  shall  make  a  list  of  all 
the  persons  voted  for,  and  of  the  number  of  votes  for  each ;  which 
li»t  tliey  xhnll  hj^d  and  certify,  and  tnin.initt,  at'iiled,  to  tbe  test  of 
the  govcriinierii  uf  tlic  Unitvd  8tat4»,  <liix-ctvd  to  the  pmident  of 
the  Senate.  The  prcttdeot  of  the  Senate  nhall,  in  the  presence  of  the 
Senate  and  tlonw  of  BcpreseDtativeB,  open  all  tbe  certiflcatea,  and 
the  voles  sliall  then  be  counted.  Tbe  person  having  tli«  greatest  num- 
ber of  vote*  itball  be  the  Preaidcnt,  if  mich  number  be  a  majority  of 
the  wliolc  numWr  of  electors  ap|>otnted ;  and  if  there  be  more  than 
one  who  hare  such  ninjority,  and  have  an  equal  number  of  votes,  tlieo 
the  House  of  licpreseotatives  shall  immediately  choose  by  ballot  one  of 
them  for  President ;  and  if  no  person  have  a  majority,  then,  from  the 
five  bigheat  on  tlie  list  Ibc  said  House  shall  in  like  manner  elioose  tbe 
Pnsideut.  Bill  in  choosing  the  Prcsklmt  the  votea  shall  be  taken  by 
States,  Uie  reprcwntation  from  each  State  having  one  Totc ;  a  qooram 
for  this  paq>ose  shall  consist  of  a  member  or  members  from  two  thirds 
of  the  Stat4-M,  and  a  majority  of  all  the  States  shall  he  necessary  to  a 
choice.  In  every  case,  after  the  choice  of  the  President,  the  person 
baring  tbe  greatest  number  of  votes  of  tbe  electore  shall  be  tbe  Vice- 
President.  But  if  there  should  remain  two  or  more  wl>o  have  equal 
rotes,  the  Senate  shall  oboose  from  them  by  ballot  the  Vice-President. 

4.  Tbe  Congre»a  may  determine  the  time  of  chooaing  Uw  cI*cloni, 
and  tbe  Oay  on  which  Ui«y  shall  give  their  rotes ;  which  day  shall  be 
the  same  tlirougliout  Uk  United  Sutea. 

&.  No  pvTvon  cxc«-i>l  n  nntural-ix>m  citizen,  or  a  citizen  of  the 
United  Statn  at  the  time  of  the  adoption  of  Ibis  Constitution,  shall  be 
•ligiblo  to  the  office  of  riesiJenl ;  neither  shall  any  person  be  eligible 


IHB  CONSTITDTIOK. 


Sbchok  9. 

1.  Tbe  migration  or  iroponation  of  each  persons  u  uijr  of  the 
SUtes  DOW  existiog  ehali  UUnk  proper  to  admit  aliall  ool  be  prohibitMl 
by  tbe  Congress  prior  to  the  jrear  ooe  tbouuuKl  vi|{tit  hnn<lrM]  wkI 
eight,  but  a  tax  or  duty  may  be  impoaed  on  audi  im]>orl>tioQ,  not 
exraediiig  ten  dollaro  for  eai-h  penon. 

i.  Tbr  privilege  of  Uie  yiril  of  hufn^a*  corpvu  shall  not  be  suspended, 

JcHH  wlien  In  cmm  of  rclwtlion  or  invuion  the  public  safety  may 

|uin.'  it, 

A.  N'o  bill  of  attainder  or  txpoMfaeto  law  shall  be  passed. 

4.  No  capitation,  or  other  direct  tax  shall  be  laid,  unless  in  propor- 
tioD  to  the  cenaug,  or  enameratton  hereinbefore  directed  lo  l>c  tuken. 

5.  No  tax  or  duty  shall  Iw  laid  oo  articles  exported  from  any  State. 
Mo  preference  shall  be  given,  by  any  rogntation  of  commerce  or  rero* 
Due,  to  tiie  ]>orta  of  one  iitHtc  over  tbone  of  another ;  nor  shall  rcsstla ' 
bound  to  or  fraia  one  iitate  be  obliged  to  ent«r,  clear,  or  pay  duties  is  , 
another. 

6.  No  money  shall  be  drawn  from  the  treasury,  but  In  consequeoc* 
of  appropriations  made  by  law  ;  and  a  regular  Hlalement  and  acoonnt 
of  the  receipts  and  ex]>eiidltnrea  of  all  public  money  aliall  be  publi«be(t 
from  time  to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United  States:  And 
DO  person  holding  any  office  of  profit  or  trust  nnder  them  shall,  without 
the  consent  ot  tbe  Congress,  accept  of  auy  present,  emolument,  office, 
or  title  of  any  kind  whatever,  from  any  king,  priuee,  or  foreign  steM. 

Srctios  10. 

1.  No  State  shall  enter  into  any  treaty,  aIUan(«,  or  confederation ; 
grant  letters  of  marque  and  reprixal ;  coin  money ;  emit  bills  of  credit ; 
make  anything  but  gold  and  silver  coin  a  tender  in  payment  of  debts ; 
pass  any  bill  of  attainder,  ex  pout  facto  law,  or  law  Imp^ring  tfae  obU> 
gallon  of  cntitmcui,  or  grant  auy  title  of  nobility. 

2.  No  State  ithnll,  without  the  conseal  of  the  Congress,  lay  any  im- 
posts or  duties  on  imports  or  exports,  except  what  may  be  absolutely 
aeoeeeaiy  (or  exoenting  its  inspection  laws ;  and  the  net  produce  of  all 
duties  and  imports,  laid  by  any  State  on  imports  or  exports,  shall  be 
(or  the  use  of  the  treasury  of  the  United  States ;  and  all  such  laws 
•hall  be  subject  to  the  revision  and  control  of  the  Congress.  No  State 
slinll,  without  the  consent  of  Coiigresa,  lay  any  duty  of  tonnage,  keep 
troojui,  or  ships  of  war.  In  time  of  peace,  enter  into  any  agreement  or 
compact  with  another  State,  or  with  a  foreign  ]>ower,  or  engage  in 
war,  udImw  actually  Invaded,  or  in  such  Imminent  danger  as  will  not 
admit  of  delay. 


THE  OOKSmtmOM. 


xli 


ABTICLE  n. 


Szcnox  1. 

1.  The  esecutive  power  ehall  be  ve»l«l  in  a  Ptwtidcnt  of  the  United 
States  of  Amvrivu.  He  shall  hold  liU  ollk-u  during  the  l«mi  of  four 
yv*n,  and,  togctlwr  with  the  Vice-l*nsideiit,  choeea  for  the  sune 
tcnn,  be  elected  m  follows:  — 

2.  Eaefa  Stata  ebaiX  appoiDt,  in  eucb  roaaner  as  the  legislature 
theteof  msy  direct,  a  number  of  electors  equal  lo  Uie  wh(de  Dainber 
of  scRstore  and  reprc«cntativc«  to  wliieh  tlie  SUite  amy  he  entitled  in 
the  CongrcM ;  but  no  senator  or  rcprcscDtntivc,  or  ponton  lioUIing  an 
office  of  trust  or  profit  under  the  United  t>tatcti,  ohall  be  appointed  an 
elector. 

S.  The  electors  shall  meet  in  their  respective  States,  and  rote  by 
ballot  for  two  ])«rM>ns,  of  whom  one  at  leaat  fltioll  not  be  on  Inhabitant 
of  the  same  SlaU:  with  thcniMlvai.  And  Itiey  shall  make  a  list  of  all 
the  persons  rotod  for,  and  of  tiic  number  of  votes  for  each ;  which 
list  the;  shall  vi^n  and  certify,  anfl  trnnumtt,  Healed,  to  the  vcat  of 
the  govemment  of  the  United  States,  direct«d  to  the  president  of 
the  Senate.  Tlie  president  of  the  Senate  sliall,  in  tbe  presence  of  tlw 
Senate  and  House  of  Representatives,  open  all  Uie  certificates,  and 
the  votes  shall  then  be  oounletl.  The  penum  hanng  the  greatest  num- 
ber of  totes  sliall  be  tliv  IVesident,  If  such  number  be  a  majority  of 
the  whole  number  of  eleetore  appointed ;  and  if  there  l>e  more  than 
one  who  have  such  majority,  and  bave  an  equal  nuinbcr  of  votes,  then 
the  lIouKe  of  Representatives  shall  immediately  choose  by  1>allot  one  of 
them  for  l*ie»ident ;  ■»<!  if  no  |>erHon  tiave  a  majority,  then,  from  tlto 
five  highest  on  the  list  the  sai^l  House  tshall  in  like  manner  choose  tbe 
Presideot.  But  in  choosing  the  i'resident  the  votes  shall  be  taken  by 
States,  the  representation  from  each  State  having  one  vote ;  a  qnorom 
for  this  purpose  shall  consist  of  a  member  or  members  from  two  thirds 
of  the  States,  and  a  majority  of  all  tbe  States  shall  be  necessary  to  a 
choice.  In  every  case,  after  the  choice  of  tiie  President,  the  person 
having  the  greatest  number  of  votes  of  tl>e  elccton  shall  be  the  Vice- 
President.  But  if  there  should  remain  two  or  more  wlio  have  equal 
rotes,  the  Senate  shall  cl»ooite  from  them  by  ballot  the  \'ice-l'rewdunl. 

4.  The  CungrvMS  may  detertaine  the  time  of  choosing  Die  electors, 
and  the  day  on  which  they  shall  give  their  votes ;  which  day  shall  be 
the  same  throoglmut  tlie  United  States. 

5.  No  person  except  a  naturaI-I>om  citizen,  or  a  ei'ti/en  of  the 
United  States  at  tbe  lime  of  the  adoption  of  Ibis  Constitution,  shall  he 
eligible  to  the  ofHce  of  President ;  neitlier  shall  any  person  be  eligible 


zlii 


THE  COA'STmrnON. 


to  Uiat  offic«  wbo  eIibII  oot  bare  atUuDed  to  the  age  of  UUrty-flre  ;eftra. 
and  been  fourteen  years  a  resident  wilbls  tiie  Unlt«d  States. 

6.  Id  case  of  the  removal  of  the  President  from  ofllcc,  or  of  bi« 
deatb,  rcai^atJon,  or  Inability  to  discharge  tfae  powers  and  <lutic«  of 
the  aaid  otllce,  the  same  abuli  devolre  on  the  Vice-Prc«i(l«nt,  and  the 
Coi^TCsa  may  by  lav  provide  for  tii«  case  of  removal,  death,  reeigDa- 
tioD,  or  inability,  t>otli  of  the  I^rcmidvut  and  Vicc-Pr«sideot,  declaring 
what  offloer  ohall  then  act  as  I'rcsidcnt,  and  such  oHIcer  shall  set 
according);,  tiotil  the  disability  be  removed,  or  a  President  shall  be 
elected. 

7.  The  Prwiident  sliall,  at  hui«I  times,  receive  for  his  sen-ice*  a 
compensation,  which  nitail  neitticr  be  incnrascd  nor  diminished  during 
the  period  for  which  hi-  shall  hare  been  elected,  and  he  shall  not  re- 
ceive within  that  period  any  other  emolument  from  the  United  Stales 
or  any  of  them. 

6.  Before  be  enter  on  tlic  execution  of  his  oflSce,  he  shall  take  the 
followiDg  oalh  or  alllrmation ; 

9.  *'  I  do  iwlcmuly  swear  (or  afflrm),  that  I  will  faithfully  execute 
the  office  of  l*re6idflnt  of  the  United  States,  and  will,  to  tlic  tic«t  of  my 
abili^,  preserve,  protect,  and  defend  the  CoostitutioD  of  the  United 
States." 

Skctiok  S. 

1.  The  President  shall  be  commaoder-io -chief  of  the  army  and  navy 
of  the  United  Slat<!H,  and  of  the  militia  of  the  several  States,  wbeo 
called  into  the  actual  service  of  the  United  States ;  be  may  retgulre  the 
opinion.  In  writing,  of  Uic  jiriniripal  oflker  in  each  of  the  executive  de- 
partments, njwn  any  mi hjed  relating  to  the  duties  of  their  respecftlre 
oMoes,  and  be  sliall  have  po^r  to  grant  reprieves  and  pardons  for 
oOeocee  against  the  United  States,  cxcei)!  In  eases  of  tRipcachment. 

2.  He  shall  have  power,  by  and  wiili  tlic  advice  and  consent  of  tlic 
Senat«f  to  make  treaties,  provided  two  thirds  of  the  senators  preseot 
concur ;  and  he  shall  Dominate,  and  by  and  with  tlie  lulvice  awl  oon- 
KSl  of  the  Senate  shall  appoint  aiobasMdore,  other  public  mmistera 
and  cousuU,  judges  of  the  Supreme  Court,  and  all  other  oRlcera  of  the 
United  States,  whose  apjwintmeota  are  not  herein  otherwise  provided 
for,  and  which  ahall  be  established  by  law ;  but  the  Congress  may  by 
law  vest  the  appointment  of  such  inferior  olScera  as  they  think  propvr 
in  the  President  alone,  in  the  cotirla  of  law,  or  in  the  heads  of  de- 
partmeato. 

3.  The  President  shall  have  power  to  fill  np  aU  vacancies  that  may 
happen  dniing  tlM  receoa  of  the  Senate,  by  granting  ootiimiasioiDtt 
wUch  shall  expire  at  the  end  of  their  next  seakn. 


IHB  CONSfHTDTlOK. 


zUU 


SBonoii  8. 

I.  He  shall  from  time  to  time  give  to  the  CongrcM  iofonsfttion  of 
the  aut«  uf  the  t'aion,  tutd  ri-commeDd  to  their  ooiuidentUoa  such 
nviuturvM  lu  h«  sliall  Jti<lge  ueceseary  and  expedient :  ho  may,  on  ex- 
traoidioitry  ovnwiouit,  couveue  boUi  houses,  or  either  of  tbem,  and  in 
case  of  disagrocmcnl  l>t;Iwu«a  tbem  vriUi  resiiect  to  the  time  of  ad- 
JournmeDt,  he  may  ad}DurD  Ui«in  to  »»i;h  time  lut  be  xluill  Uiiiilc  [iru^r  i 
he  ahall  receire  ambassadors  and  oUivr  public  PiinbUr* ;  be  Khali  take 
care  thai  Uie  laws  be  faithfully  executed,  and  tdiall  commiasioD  all  the 
Officers  of  the  United  States. 

SeChoit  4. 

1.  The  President,  Vice-President,  and  all  dvll  ofBcers  of  the  United 
Statea  vhall  be  removed  from  office  on  impeachment  for,  and  oonviclioa 
ot,  trea»OD,  bribery,  or  other  high  Crimea  aud  miadcmeaaorH. 


ARTICLE  in. 

StXTTlOX    1. 

1.  Tbe  Judicial  power  of  the  United  States  aliall  be  rotted  in  one 
Sapntne  Court,  and  In  such  ioferlof  cotuto  as  tbo  CoogrMW  may  from 
tboe  to  time  ordftiu  and  estaUish.  The  Judge*,  botb  of  tbe  wprenia 
and  inferior  courla,  ahall  hold  their  ollicca  during  good  behavior,  and 
riiall.  at  (it«t<,>d  tin>cii,  receive  for  their  services  a  compenaatioQ,  wblcb 
■baU  not  be  diminbibed  during  their  oonUnuanoe  in  otDoe. 


SEcnoK  2. 


^V  I.  The  Judicial  power  ahall  cxtoiul  to  all  casea,  in  law  and  eqnity, 
I  arising  under  ttiiv  Constitattoo,  Uic  laws  of  the  Uoited  States,  and 

I  tnatica  made,  or  which  «liall  be  ma<)e,  under  their  authnrily ;  to  all 

^^  cawa  affecting  amhaasadorv,  other  public  ministers  and  onHaln  ;  to  all 
^H  eases  of  admiralty  and  maritime  Jurisdiction  ;  to  controreraies  to  which 
^^  '  the  United  States  shall  bo  a  party ;  to  controveraies  between  two  or 
L  more  States,  between  a  State  and  citLEena  of  uaother  State,  Iwtwcca 

^^U  eitixeua  of  difFercnt  States,  between  cttlaens  of  the  same  State  claim- 
^V  I  tag  Innda  nuder  grouta  of  different  States,  ami  between  a  State,  or  the 
^K  \  citixcnK  thereof,  and  foreiKU  states,  citizeita,  or  aabjecta. 
^H  3.  In  all  coMiH  a/Tccting  ambasaadora,  other  public  ministers  and 
H  consuls,  and  tbotte  in  whkh  a  Stats  shall  be  a  party,  the  Supreme 
Court  sball  have  origiiud  jurisdiction.    In  all  the  other  casea  before 


xliT 


THB  COManTUnON. 


meationc<I,  the  Supf«in«  Court  aball  tiave  app«Unt«  Jurisdiction,  both 
an  to  liivr  nail  fiiot,  witb  such  cxc«)(ti<>uit,  uniJ  under  Budi  rvgulatiooa, 
as  the  Coflgraad  Hhall  mnke. 

3.  Tbc  triul  of  «11  criiDcii,  except  in  cues  of  imp««dim«nl,  nhatl  bo 
b;  Juiy ;  *aA  wicfa  trial  ufaftll  be  held  in  the  State  where  tlic  Miid  crimes 
sliall  havo  t>ecn  committed  ;  but  whca  not  committed  within  any  State, 
the  triad  Hfaall  be  at  such  place  or  places  ss  the  Congncs  may  by  law 
have  directed. 

Sscnox  8. 

1.  Treason  against  the  United  SlAtca  altol)  oonaiHt  only  In  Icryiog 
war  against  them,  or  in  a<lheriiix  to  their  enemiex,  giving  them  aid  and 
comfort.  No  penon  ttliall  )>e  convicted  of  treason  unless  on  the  testi- 
mony of  two  witneitscs  to  the  same  oreit  act,  or  on  confession  in  open 
oowt. 

2.  The  Congress  shall  bare  power  to  dedare  the  panisbmcnt  of 
treason,  but  no  attainder  of  treason  shall  work  eormptlou  of  Mood, 
or  forfeiture,  except  during  tliu  life  of  Itie  perwon  ultuint«d. 

/ 
ARTICLE  IV. 

SecnoH  1. 

I.  Fall  faith  and  credit  ohall  l>c  given  in  each  i^tatc  to  the  public 
acts,  records,  and  judicial  proccedingx  of  every  other  8tate.  And  th« 
Cotigrcss  may  by  general  laws  prescribe  the  manner  in  which  such  a£te, 
records,  and  proceedings  shall  be  proved,  and  tbe  effect  thereof. 

SBcnoR  2. 

1.  The  cilixens  of  each  State  shall  bo  cnttllcd  to  all  privileges  and 
Immunities  of  citizcnR  in  Uie  several  Stntot. 

i.  A  p«ra0D  charged  in  any  State  with  treason,  felony,  or  oUier 
crime,  wbo  sh4dl  flee  from  justica,  and  be  found  in  another  State, 
shall,  on  demand  of  the  oxecotire  authority  of  the  Stnt«  from  which 
be  fled,  be  delivered  up,  to  be  reiuoved  to  the  State  having  Jmisdictlon 
of  the  crime. 

3.  No  person  held  to  service  or  Isbor  In  one  Stale,  under  the  laws 

tfaereof,  eacapinf  into  another,  xhall,  in  consequence  of  any  law  or 

r^laUon  therein,  be  discharged  from  wich  service  or  labor,  but  slioll 

be  delivered  ap  on  claim  of  the  party  to  whom  audi  service  or  labor 

may  be  due. 

Skction  8. 

1.  New  States  nay  be  admitted  by  the  Congrem  into  this  Union : 
but  no  new  State  shall  be  formed  or  erected  wiUilu  the  Jurisdiction  of 


lOK. 


Xlv 


aoy  other  SUte ;  nor  any  State  be  fonned  by  the  Janction  of  two  or 
more  Ststea.  or  parts  of  States,  without  the  consent  of  the  lej^BUtures 
of  tb«  States  ooDoem«d,  as  well  as  of  the  Congress. 

2.  TIte  Congress  afasll  have  power  to  dispose  of  aud  nuke  all  need- 
ful rulos  oud  r«gn1alloua  reepectinf!  the  territory  or  oilier  prc^wrly  be- 
longing to  the  United  States ;  and  uolhiiig  in  this  CoDHtilulion  sliall  be 
■o  constraed  as  to  prejudice  any  claims  of  liiv  Uuitvil  SUtes,  or  of  any 
|>articular  St«tc. 

Sbctioii  i. 

I.  The  Unit«d  Statn)  alinll  ^uaruntee  to  ereiy  St*l«  fa  thit  Union  a 
epabliean  fono  of  gov  o  mm  cut,  nnd  »liiill  prot«et  eedi  of  tbein  ^alnat 
inrasion ;  and  on  npplicatioo  of  Ui«  lej^islalnre,  or  of  tltv  exemtive 
(when  the  legisUture  cannot  be  convened),  against dooKstic  Tiolencc. 

ARTICLE  V. 

I.  The  CoDgresB,  whenQver  two  thirdu  of  txitli  IwDties  Hhall  deem  Et 
Decessary,  ebatl  propose  amendments  to  tliis  ConntitiitJon,  or,  on  the 
application  of  the  legislatures  of  two  thirds  of  the  seTcral  States,  shall 
a  coQTenttoo  for  propOMng  amendments,  which,  in  either  case, 
'■halt  be  valid  to  all  intents  and  purposes,  as  part  of  this  ConstitutioOf 
when  ratilicd  t>y  tltc  IcgiNlaltires  of  three  fourtlis  of  tiie  aevoml  StutM 
or  by  coDTcntiont  in  three  foortha  thereof,  an  the  one  or  the  oUier 
Dwde  of  rattflcattOD  may  be  propoacd  by  tbe  Congress :  Provided,  that 
fBO  ameodioeiit,  which  may  be  made  prior  to  the  year  one  thousand 
{bt  hundred  and  eight,  abatl  in  any  manner  afteet  the  first  and  fourth 
fdaoacs  tn  the  ninth  scuUon  of  tbe  first  arttdc ;  and  that  no  .State,  with- 
out Its  consent,  sliall  be  deprived  of  its  equal  sulTrage  in  the  Senate. 

AKTICLE  VI. 

1.  AH  debts  contracted  and  engagementa  entered  into,  before  tlie 

plioa  of  this  Constitution,  shall  be  as  valid  against  tlie  United 

StatM  under  tlila  Constitution  aa  under  ttie  confeileralioii. 

X.  Tliis  ConHtitution,  and  the  laws  of  tbe  Cnitcd  States  which  aliall 

Jbe  made  in  pnnniaace  thereof,  ami  all  treaties  miuh,  or  which  Khali  l>o 

■ade,  under  the  antliority  of  tbe  Unitctl  States,  Ktiall  tw  the  supreme 

law  of  the  land ;  and  tbe  jndgeK  in  every  State  shall  bo  bound  thereby, 

Bjrthtng  is  (he  constitution  or  law8  of  any  State  to  the  contrary  not- 


3.  Tbe  senators   and  representatives  before  mentioned,   and   tbe 

^nembera  of  the  several  State  legislatures,  and  all  executive  and  jadi- 

I  olBcers,  both  of  the  United  States  and  of  the  several  States,  shall 


xlvi  THE  COKBTlTUnW. 

be  bound,  hj  oftth  or  afflrnutaon,  to  support  this  Coustitation ;  tmt  no 
religioos  tert  eh&ll  ever  be  required  aa  a  qoaliSofttioa  to  iny  offloe  or 
public  troBt  under  Uie  United  States. 

AETICLE  VU. 

1.  The  ratiflcatJon  of  tbe  conventtona  of  nine  Statea  ahall  be  suffi- 
cient for  the  establishment  of  this  Constitutioa  between  the  St«tee  so 
ratifying  the  same. 


10K. 


zlrii 


AMENDilENTS  TO  THE  CONSTITUTION. 


ARTICLE  I. 

Congress  sball  mtke  no  l«w  Kapecting  an  esUblishment  of  relig:ion. 
Of  piobibitjng  Uu:  frc«  eietdae  thereof ;  or  abridging  tbe  freedoni  of 
speech,  or  of  the  prats ;  or  the  Hf  bl  of  tbe  p<!ople  p«Meably  to  uwom- 
ble,  and  to  petitioa  the  government  for  »  n-di«»s  of  gricvaiKes. 

ARTICLE   II. 

A  welUrcgiilntcd  mititin  being  occcsaarjr  to  tli«  Bocoiily  of  a  fr«e 
state,  tbe  right  of  the  people  to  keep  ami  bear  anus  «haU  not  be 
infringed. 

ARTICLE  in. 

No  Mldicr  shall,  in  time  of  pc*oc,  be  <iuartered  in  any  lionse  with- 
out the  consent  of  Uie  owner;  nor  in  time  of  war,  but  in  a  manner  to 
be  prescribed  by  law. 

ARTICLE  IV. 

Tbe  right  of  tbe  people  to  be  secure  in  their  persons,  bonses,  p&pcn, 
and  efTects,  agaloBt  unreasonable  searches  and  seizures,  shall  not  be 
violated;  and  no  warranto  shall  Issue,  but  upon  probable  eouac,  mip- 
ported  by  oatli  or  alUnnation,  and  pm-tirulnrly  deiioriljing  tbe  place  to 
be  aearcbed,  and  the  pei*on»  or  tlii»g«  U>  be  scixod. 

ARTICLE  V. 

Mo  peraoD  ^all  be  held  to  answer  for  a  capital  or  otiierwisc  tnfa* 
rnons  crime,  unless  on  a  presentment  or  indictment  of  a  grand  Jury, 
eioept  in  eases  arising  in  the  land  or  uaral  forees,  or  in  the  mtlitJa, 
when  in  actual  ser^-ioe.  In  time  of  war  or  [HiMic  danger ;  nor  shall  any 
person  be  subject  for  tbe  same  offence  to  be  twice  put  in  Jeopardy  of 
life  or  limb ;  nor  aliidi  he  compelled,  hi  any  criminal  case,  to  be  a  wit- 
oaM  Bgalnsi  bimMlf,  nor  be  deprived  of  life.  Liberty,  or  property, 
without  duo  procesa  of  law ;  nor  shall  pciraGe  property  be  taken  for 
public  nee  without  jast  compensation. 

ARTICI-E  Vt. 

In  all  cHminal  prosecutions  the  accused  shall  enjoy  tbe  right  to  t 
•psedy  and  public  Irial,  by  an  iin{>aitial  Jury  of  the  btate  and  district 


xlriii  THE 

wherein  the  crime  ttball  Iiavv  been  committed,  wliicfa  district  Rhall  hxn 
been  previously  uoorUiDed  hy  law ;  utd  to  be  iurornicd  of  tbe  nature 
■ad  MOM  of  the  accnsatioQ ;  to  be  confronted  witb  the  witiwa 
■ftlttft  him :  to  h«ve  compulsor?  process  for  obuiniog  iritneesefl  inl 
hift  fsTor ;  and  to  hmve  tbe  ueistance  of  oonnse)  for  bia  defrace. 

ARTICLE  VII. 

In  Miit«  at  common  Uw,  wltere  tbe  value  In  controversy  sbaU  exc 
twenty  dollars,  tbe  right  of  trial  by  Jury  shall  be  preserved ;  and  no 
Tact  tried  by  a  Jury  shall  be  oltivrwiM  re-examtned  in  any  oourt  of  i 
United  ^Ule^,  than  accwnliutj  to  the  niles  of  the  oobudod  Uw. 

ARTICLE  Vin. 

Exce«siT«  bnil  NbaTI  not  lie  required,  nor  excessive  fines  imposed, 
□or  citiel  aad  unusual  puui«hm«ala  Inflicted. 

ARTICLE  IX. 

Tk*  «DunMretion  in  tlie  Constitution  of  certain  tigbta  shall  not 
eoaBtroed  to  deny  or  diniMruge  otben  relsiaed  by  tbe  peo^. 

ARTICLE  X. 

Tbe  powers  not  delefcated  to  the  United  Stales  by  the  Conatitntloo 
nor  pndiibiled  by  it  to  the  Statss,  are  reaerred  to  the  States 
UTdy,  or  to  the  poofile. 

ARTICLE  XL 

The  Judicial  power  of  the  Cnited  Sutes  ahall  not  bt  ooostraed  to 
SZtMtd  to  aur  suit  in  law  or  equity,  oomawncvd  or  prosecotsd 
OM  of  the  Vuit<tl  States  by  citiacu  of  aDotbcr  State,  or  by  cit 
anbjeoti  of  »y  f oraigB  M«t». 

ARTICLE  XIL 


1.  Tbe  electM*  AM  iMrt  in  tbeir  lespectlie  State*,  and  mte 
ballot  ftw  rissiJtal  and  Tiee-rrcsMlent,  one  of  whan,  at  IcMt.  i 
Ml  bt  aa  IsH"*"'  **  the  sane  State  wftb  tfacswdns;  they 
naate  in  the  fasUals  tbe  peraon  voted  for  as  PrcsidenV,  sad  la 
tMOoM  the  pcnoa  Toted  for  as  Tkw-IVetidsst:  smI  Itwy  i^aB 
AtltiMl  Ms  of  an  patww  volstl  foe  as  rnaaim.  aad  of  all 
volsd  (or  m  Vke^Pmsdat.  and  of  Ibe  aanbo-  of  voles  fgr 


TBE 


xlix 


which  li«t  thej  iitiiJI  sign  aad  certify  tad  Xnonail  walftd  to  tli«  Mat 
of  the  goToniinvat  of  the  Unit«Ml  Stat«K,  directed  to  the  premdentof 
tbe  S«n*t8 ;  the  prciHd«nt  of  tha  Sco«tc  olmll,  in  ttic  [)rcHtrDc«  of  the 
lJeDSt«  and  Houm  of  RcproaentativM,  0|>eD  all  tlic  viTti<ic3it««,  nnd 
the  Totee  shall  then  be  oouDt«d ;  the  person  having  th9  greatest  num- 
ber of  votes  for  IVesident  etuJl  be  the  President,  if  wich  nnmber  be  ■ 
majority  of  tbe  whole  number  of  electors  appoint«d ;  and  if  no  person 
hare  Buch  majority,  then  from  the  persona  having  tlie  highest  numbers, 
not  exceeding  three,  on  tlie  lint  of  tlxwe  vot«d  for,  as  President,  the 
Ilome  of  Bcpretentativex  »liall  cIioohu  iniinv<)iat4:ly,  by  Inallui,  tli« 
President.  Unt,  in  choosing  tbe  I'rcHidcnt,  th«  votes  fliall  l>c  taken 
by  States,  the  representatton  from  each  State  having  one  vote ;  a 
quorum  for  thb  puriM»e  ehall  constat  of  a  member  or  membem  from 
[■two  thirds  of  the  StJttea,  and  a  majority  of  all  the  Sut«8  stiall  be  ne- 
cewary  to  a  choice.  And  if  the  Houiie  of  l{epresenutive«  shall  not 
cbooMC  a  Preaident  irhrncTer  the  right  of  choice  shall  devolve  upon 
them,  before  the  fourth  day  of  March  next  foIIowiDg.  then  the  Vice- 
President  shall  act  as  IVcsideiit,  as  in  the  case  of  the  death  or  other 
constitutional  disability  of  the  President. 

8.  Tbe  person  having  the  greatest  nuintwrof  TOtea  as  Vice>Preri- 
dent  shall  be  the  Vfce-Prealdent,  if  »uch  numlicr  b«  a  majority  of  the 
whole  number  of  ciccton  appointed  ;  and  if  oo  person  have  a  m«}ority, 
then  from  tbe  two  highest  numbers  on  the  list  the  Senate  ahall  choose 
tbe  Vice-President:  a  quoruoi  for  the  purpose  aliall  consist  of  two 
thirds  of  the  whole  nnmber  of  senaton,  a  majority  of  the  whole 
number  shall  be  necessary  to  a  choice. 

8.  But  no  peraoD  constitulionally  ineligible  to  the  office  of  President 
ahall  be  eligible  to  that  of  VioC'l'residcnt  of  tbe  United  States. 


ARTICLE  XIU. 

I.  Neither  slavery  nor  involuntary  aervltnde,  except  as  a  punish- 
tnent  for  crime,  whereof  the  party  shall  have  bo^n  duly  convicted, 
ibal!  exist  within  tbe  United  States,  or  any  place  subject  to  their 
iJuisdletion. 

i.  Congress  shall  have  power  to  enforce  this  artii^e  by  appropriate 
legislation. 

ARTICLE  XIV. 

1.  All  penons  bom  or  naUualfxed  in  the  United  States,  and  subject 

to  the  Jurisdiction  thereof,  are  citizens  of  tbe  United  Sutea  and  of  tlie 

Stale  wherein  they  reside.     No  State  shall  ninl:c  or  enforce  any  law 

'which  shall  abridge  the  privileges  or  immuiiitirH  of  citixena  of  tlic 

United  8t«te« ;  nor  shall  any  Sute  de]>rive  any  i>cr»on  of  life,  liberty, 

TOL  t.  —  d 


I 


THE  COSSTITOnOK. 


or  property,  witliont  doe  proocw  of  low.  nor  deny  to  any  person  wifbla 
its  juriwitction  the  equiJ  protection  of  the  laws. 

2.  Repreeeatativcs  shall  be  apportioned  among  the  Bererml  St 
a«coMln(;  to  their  respective  numbers,  oonntlDg;  the  v1r>I«  ntimbcr  i 
persona  fu  each  State,  excladlng  Indians  not  taxed.    But  wlien  the 
riglit  to  vote  at  an^-  elMtion  fnr  the  choice  of  electors  for  IVesidentJ 
uud  \'ic«-l'roHidMit  of  tlic  United  State*,  represcntnthres  in  CoDgresst' 
the  exectitiTS  and  jwlieial  ofKccrs  of  a  State,  or  the  members  of  the 
legislature  thereof,  is  denied  to  any  of  tbe  male  inbaliilaata  of  suchi 
State,  being  twenty-one  years  of  age  and  dtlKCiisof  the  United  StatWtj 
or  in  any  way  abridged,  except  for  partlctpation  in  relxUlion  orothe 
crime,  tbe  basis  of  repre«entatioii  therein  sludl  be  reduced  in  tbe  pro- ' 
poitioo  which  tbe  number  of  inii:li  niiLJe  citizens  aboil  bear  to  the  whole 
niunl>er  of  male  cilixcnn  twcnty-oiw  yvarw  of  age  in  such  Stale. 

3.  No  pereon  eball  be  a  senator  or  repreeentatire  in  Congrees,  oi 
elector  of  President  and  Vice-President,  or  hold  any  ofAce,  dvit  or 
nilitiiry,  nnder  tlie  ITnii«d  Stat«a  or  under  any  State,  who,  having  pfe>J 
Tionsly  t4tlie»  an  oath  m  a  memix-r  of  Congress,  or  as  an  ofllcer  of  th«i 
United  Stat««,  or  na  a  member  of  any  State  Icgialnture,  or  aa  an  ex* 
ecntire  or  judicial  ofllcer  of  any  State,  to  support  Uic  Contttitotion  of 
the  United  States,  ahall  have  engaged  in  inmirn^i-tion  or  rebellion' 
against  the  aame,  or  given  aid  or  comfort  to  tbe  enemies  thereof. 
B«t  CongraM  may,  by  a  rote  of  two  thirds  of  each  bouse,  remove 
snob  dtaabitity. 

4.  Tbe  validity  of  the  pnbliedebtof  Ibc  United  States  authorized 
by  law,  iodnding  delits  inciimrd  for  payment  of  jien^ions  and  bountie* 
for  Mrrk-ea  in  Boppreeeii^  insurrection  and  rebellion,  shall  not  be 
qiieationed. 

Itnt  neither  tbe  United  States  nor  any  State  shall  assume  or  pay  any 
debt  or  obligation  Incurred  in  aid  of  iusurrection  or  rebellion  against  tbe 
United  Stotca,  or  any  claim  for  tbe  loss  or  emancipation  of  any  Alave ; 
hot  all  audi  debia,  obligations,  or  claims  shall  be  held  illegal  and  void. 

6.  The  CongreM  elinll  luive  power  to  enforee  by  appropriate  legisla- 
tion the  provisions  of  this  article. 


ARTICLE  XV. 

1,  The  right  of  citizens  of  the  rnite<l  States  to  vo«  shall  not  be 
denied  or  ai>ri4l|ted  by  the  United  States,  or  by  any  State,  on  acconnl 
of  race,  color,  or  previous  condition  of  servitude. 

2.  The  CottgTCM  shall  have  power  to  enforce  this  article  by  appro*; 
priate  It^palotioa. 


COMMENTARIES  ON  THE  CONSTITUTION. 


VOL.  I.  —  1 


COMMENTARIES. 


FRELTMINAKy  CHAPTER. 


PLAN  OF  THR  WOEUC. 


Tbb  principal  object  of  th^no  Ooramentaries  is  to  prment  a 
full  atialyiiis  and  Etxponiitiun  of  the  Oonatitation  of  Uovonmtcnt 
of  the  United  Stativ  of  America.  In  order  to  do  this  with 
clearn««B  niid  accurucir,  it  !»  ncceHtuiry  to  underBtand  what  was 
tbo  political  poattioD  of  tlio  ftuvcriil  Stated  composing  the  Union, 
la  relation  to  each  other  at  the  time  of  ita  adoption.  This  will 
naturully  conduct  us  beck  to  the  Americau  Revolution,  und  to 
tlio  furnitttiun  of  the  Cuiifcduratiun  cunxe<juent  thereon.  But  if 
we  stop  bore,  wo  Bhall  still  be  surrounded  with  many  diflicultiea 
io  regard  to  our  domestic  inHtitutions  and  poliey,  which  bare 
l^wn  out  of  transactions  of  a  much  earlier  date,  connected  on 
one  side  with  the  conmion  dependence  of  all  the  colonics  upon 
the  British  Empire,  and  on  the  other  with  the  [narticular  char- 
tem  of  ftovcmment  and  internal  legislation  which  hclongvtl  to 
each  colony  as  a  distinct  sovereif^ty,  and  which  have  imprcsHod 
npoD  each  peculiar  habits,  opimons,  attochmonte,  and  even  pre- 
judices. Traces  of  these  peculiarities  arc  everywhere  disocraibte 
in  tile  actual  jurisprudence  of  each  State;  and  are  silently  or 
openly  referred  to  id  several  of  the  provisions  of  the  Constitu- 
tion of  the  United  ytatot*.  In  short,  without  a  careful  review  of 
the  origin  and  i^onstilutional  and  juridical  history  of  all  tbo  col- 
cafes,  of  tlic  principles  common  to  all,  and  of  the  diversities 
which  were  no  less  rcnutriialile  in  all,  it  would  be  impoA.4ib1e 
fully  to  understand  the  nature  and  objects  of  the  CouHtittition; 
the  reasons  on  which  several  of  its  most  important  prorisioos 
are  fmmded;  and  the  necessity  of  those  concessions  and  com- 
promiscs  which  a  desire  to  fonn  a  solid  and  perpetual  Union  has 
incorporated  into  its  leading  foaturea. 


COMBTITDnOKAL  LA.W. 


The  plan  of  the  work  will,  therefore,  natarallj  comprehend 
three  great  divisions.  The  first  will  embrace  a  sketch  of  the 
charters,  conBtitutional  histoiy,  and  antfl-revolationary  jurispni- 
dence  of  the  colonies.  The  second  will  embrace  a  sketch  of  the 
constitutional  history  of  the  States  during  the  Revolution,  and 
the  rise,  progress,  decline,  and  fall  of  the  Confederation.  The 
third  will  embrace  the  history  of  the  rise  and  adoption  of  the 
Constitution;  and  a  full  exposition  of  all  its  provisionB,  with 
the  reasons  on  which  they  were  respectively  founded,  the  objec- 
tions by  which  they  were  respectively  assailed,  and  such  illustra- 
tions drawn  from  contemporaneous  documents,  and  the  subsequent 
operations  of  the  government,  as  may  best  enable  the  reader  to 
estimate  for  himself  tbe  true  value  of  each.  In  this  way,  as  it 
ie  hoped,  his  judgment  as  well  as  his  affections  will  be  enlisted 
on  the  side  of  the  Constitution,  as  the  truest  security  of  the 
Union,  and  the  only  solid  basis  on  which  to  rest  the  private 
rights,  the  public  liberties,  and  the  substantial  prosperity  of  the 
people  composing  the  American  Republic. 


BOOK   I. 


HISTORY    OF    THE    COLONIES. 


CHAPTEtt  I. 


ORIOIK  OP  THE  -mtS  TO  TERRITORT  OF  TBE  QOLONtKS. 


{  1.  Thp.  discovery  of  the  continent  of  America  hy  Columbus 
in  the  lift«!ulh  century  awakened  the  attention  of  all  the  mari- 
time statea  of  Euro]>e.  Stimulated  by  the  iove  of  glorj-,  nnd  still 
more  by  the  hope  of  gain  and  dominion,  many  of  Ihem  c&rly 
embarked  in  adventurous  enterprises,  the  object  of  vhicli  was  to 
found  colonics,  or  to  search  for  the  precious  metals,  or  to  ex- 
change  the  product*  and  manufactures  of  the  Old  World  for 
whatever  was  most  valiuible  and  attractive  in  the  New.'  Kng- 
land  was  not  behind  her  continental  neighbors  in  seeking  her 
own  aggrandizement,  and  nourishing  her  then  infant  com- 
merce,' The  ambition  of  Henry  the  Seventh  was  rmised  by  tJie 
communications  of  Columbus,  and  iu  l-l'J5  he  grantt->d  a  com- 
mission to  John  Cabot,  an  enterpriaing  Venetian,  tlien  aettlod 
in  England,  to  proceed  on  a  voyage  of  discovery,  and  to  sutxlue 
and  take  poe^iesaion  of  any  lands  unoccupied  by  any  Christian 
Power,  in  the  name  and  for  the  benefit  of  the  British  Crown.* 
In  Uie  Ruc^'oeiling  year  Cabot  sailed  on  his  voya^ro,  luid  having 
first  discovered  tiie  islands  of  Newfoundland  and  St  John's,  bo 
afterwards  sailed  along  the  coast  of  the  contiiwnt  from  the  d6th 
to  the  SHth  degree  of  north  latitude,  and  claimed  fur  his  BOv«r- 
ei^  the  vast  region  which  stretches  from  the  Gulf  of  Mexico  to 
tlie  must  northern  regiona.' 

■  HmiImII'*  Amw.  CMobIm,  12.  13;  1  Hu.  Collw-  n,  72. 8^  tOS.  105;  RobtftMn'i 
1]Iib«f  Ammic^B.*. 

■  IMutaea')  Ancflfla,  B.  0. 

•  1  llu.  Coll.  9 ;  HobMtaMi'*  HbL  ef  Amniea,  B.  9. 

*  HsnWI,  Ata.  (M«m.  IS,  18 ;  BobtHm'*  ABMrkt,  B.  »■ 


6 


BISTORT  OF  TBB  COLONIES. 


tDOOKI. 


§  2.  Sach  is  the  orijpD  of  the  Brttieh  title  to  th«  territory 
composing  thi-sv  Unit»l  StAl«K,  That  title  wa»  foumlei]  on  the 
right  of  disooTcry,  a  right  which  was  held  among  the  European 
nations  a  jii«t  and  snflicient  foumlation  on  wliich  to  rest  their 
ruspcctive  claims  to  the  Ainericnn  continent  Whatever  contro- 
rereic*  existed  among  them  (and  thej-  were  numerous)  respecting 
tlie  extent  of  their  own  aeijuiflitiomi  aliroad,  they  appealed  to 
this  a^  tlie  ultimate  fact,  by  which  their  various  and  conflicting 
claims  were  to  be  adjnsted.  It  may  not  be  cosy  upon  general 
reasoning  to  establish  the  doctrine  that  priority  of  discovery  con- 
fers any  exclusive  right  to  territory.  It  -was  probably  adopted 
by  the  European  nations  aa  a  convenient  and  Bcxibic  rule  by 
which  to  regiUate  their  respective  claims.  For  it  was  ebvioos, 
that  in  the  mutual  contests  for  dominion  in  newly  discovered 
lands,  there  would  soon  arise  violent  and  sanguinary  struggles  for 
exclusive  possession,  unless  some  common  print-iple  should  bo 
rccogni'ied  by  all  maritime  nations  for  the  benefit  of  all.  None 
more  readily  suggested  itaelf  than  the  one  now  under  considera- 
tion; and  OS  it  was  a  principle  of  peace  and  repose,  of  perfect 
equality  of  benefit  in  projxirtion  to  the  actual  or  supposed  ex- 
penditures and  hazards  attendant  upon  such  enterprises,  it  re- 
ceived a  universal  acquicMencc,  if  not  a  ready  approbation.  It 
became  the  basis  of  European  polity,  and  regulated  the  oxerciae 
of  the  rights  of  sovereignly  and  settlement  in  all  the  cisatlantic 
Plantations.'  In  respect  to  dc«ert  and  uninhabited  lands,  there 
docs  not  seem  any  iniporlnnt  objection  which  can  be  urged  against 
iL  But  in  rcsi>cct  to  countries  then  inhabited  by  the  natives,  it 
ia  not  cosy  to  perceive  how,  in  point  of  justjoe  or  humanity,  or 
general  conformity  to  the  law  of  nature,  it  can  be  successfully 
vindicated.  As  a  conventional  rule  it  might  properly  govern  all- 
the  nations  which  recognized  its  oblijzatioa;  hut  it  could  hoTe 
no  authority  over  the  alwrigines  of  America,  whether  KUthered 
into  civilirod  communities  or  scattered  in  hunting  tribe.s  over 
the  wildomcfls.  Their  right,  whatever  it  was,  of  oecnpakUoa  or 
nao,  stood  upon  oripinal  principles  dedncible  from  the  law  of 
nature,  and  could  nut  be  justly  narrowed  or  extinguished  with- 
out their  own  free  eonsejit 

§  3.  There  is  no  doubt  thai  the  Indisu  tribes,  inhabiting  this 
continent  at  the  time  of  ils  discovery,  maintained  a  claim  to  the 

iJaluuDa«.M'Iiito«b,  8Wliatt.H.ftU,B72,  S73;  1  Doug.  !i«iDiii.  110. 


en.  I.] 


OBICIM  OP  THE  TtTLE  TO  TEBHiTOBV. 


«xcla8ivc  posKCMinn  and  occnpancy  of  th«  territory  vitiiin  tlielr 
'jtspectiTO  limitH  as  Rorcreigna  and  absolute  prc^rietora  of  the 
toil.  The;  acknowledged  no  obedience  or  allegiance  or  siibor* 
dination  to  any  foreign  sorerciioi  whatsoever;  and  as  far  as  they 
bare  poneeosed  the  means,  they  have  ever  einco  asserted  this 
plenary  right  of  dominion,  and  yields)  it  up  only  when  lost  by 
the  superior  force  of  conquest,  or  transferred  by  a  voluntary 
oesaioD. 

$  4.  This  is  not  the  place  to  enter  upon  the  discussion  of  the 
question  uf  the  actual  morits  of  the  titles  claimed  by  the  respec- 
tive portien  upon  principles  of  natural  law.  That  would  involve 
the  cuasideration  of  many  nico  and  delicate  topics,  as  to  the 
natur(^  and  origin  uf  pm|KTty  in  tlw  soil,  and  the  extent  to  which 
civilized  man  uiiiy  dittunnd  it  from  the  savugi!  for  uses  or  culti- 
vation different  front,  and  perhaps  more  beneficial  to,  society 
than  the  uttc»  Ui  which  the  Inlt<.-r  may  chouRe  to  appropriate  it 
8ucb  topics  belong  more  properly  to  n  treatise  on  natural  law 
than  to  lectures  profeMing  to  treat  upon  the  law  of  a  siogto 
nation. 

§  5.  The  European  nations  found  litllc  difficulty  in  reconcil- 
ing themselves  to  the  adoption  of  any  principle  which  gave 
ample  scope  *o  their  ambition,  and  employed  little  reasoning  to 
support  it.  They  were  content  to  take  counsel  of  their  interests, 
their  prejudices,  and  their  passions,  and  felt  do  necessity  of  vin- 
dicating their  conduct  before  cabinotft,  which  were  already  eager 
to  rceognizc  its  justice  and  its  policy.  The  Indians  were  a  sav- 
age race,  sunk  in  the  depths  of  igiiomnce  and  heathenism.  J( 
tl»ey  might  not  be  extirpated  for  their  want  of  religion  and  jnst 
morals,  they  might  l>e  reelaimed  from  tbeir  errors,  Thuy  were 
Imund  to  yield  to  tlio  sujierinr  genius  of  Kiirope,  and  in  exchang- 
ing their  wild  and  debasing  habits  for  eiviliiation  and  Christian- 
ity they  were  deemed  to  pain  more  than  an  equivalent  for  every 
sacrifice  and  suffering.'  The  Papal  authority,  too,  was  brought 
in  aid  of  these  great  designs;  and  for  the  purpose  of  overthrow- 
ing heathenism,  and  propagating  the  Catholic  religion,*  Alexan- 


■  a  VbMt.  It.  SiS,  &T8  i  I  Hai.Coll.SOi 51,  73,  S3;  103,  lOS;  Vklttl.  K  I.  di.  IS, 
U  907,  toe,  M*.  ud  Bota. 

*  "  Ut  thin  CWUialio,  et  ChriUiam  Bdigio  UMtrii  pntaertim  tenpodbm  cnlMv, 
ftt.,  M  hubant  niUoMi  dapnnMBtar,  «t  ad  Uctn  ipMn  ndacaatnr,"  U  th»  \angTncii 
«f  tha  BolL     1  Uai.  CdL  S. 


8 


HIOTOBT  OP  THE  COLOKIBS. 


[BOOK  I. 


dcr  the  Sixth,  hy  a  Bull  issued  in  149}t,  granted  Us  Uie  Orovo  of 
Castile  the  whole  of  the  immense  territorj'  tlien  discovered,  or 
to  be  discovered,  Iwtween  the  poles,  so  far  ««  it  was  not  tluta 
possessed  1)}*  anj  Christian  prince.' 

§  (\.  The  principle,  then,  that  discovery  gave  title  to  the  gor> 
crament,  hy  whose  nubjccts  or  hj  whoae  authority  it  waa  made, 
against  all  other  European  (^venunents,  being  once  established, 
it  follon-od  almost  aa  a  matter  of  course,  that  every  government 
within  the  limits  of  its  discoveries  excluded  all  other  personti 
from  any  right  to  acquire  the  soil  by  any  grant  whatsoever  from 
the  natives.  No  nation  would  suffer  cither  its  uwn  subjects  or 
those  of  any  other  nation  to  set  up  or  vindicate  any  such  title* 
It  was  deemed  a  right  eKclusivcly  belonging  to  tlie  government 
in  its  flo^-eroign  capacity  to  extinguish  the  Indian  title,  and  to 
perfect  its  own  dominion  over  the  soil,  and  dispose  of  it  accord* 
ing  to  its  own  good  pleasure. 

§  7,  It  may  be  asked,  what  was  the  effect  of  this  principle  of 
discovery  in  respect  to  the  rights  of  the  natives  themselves.  In 
the  view  of  the  Europeans  it  created  %  peculiar  relation  between 
themselvca  and  the  aboriginal  inhabitants.  The  tatter  were 
admitted  to  poasees  a  present  right  of  occupancy  or  use  In  th« 
soil,  which  waa  aubordinate  to  the  ultimate  dominion  of  tlic  dis- 
oovcrer.  They  were  admitted  to  lie  the  rightful  occupants  of 
the  soil,  with  a  legal  as  well  aa  jnat  claim  to  retain  pOMeesioa 
of  it,  and  to  use  it  according  to  their  own  diitrretinn.  In  a  cer- 
tain sense  they  wore  permitted  to  exercise  rights  of  sovereignty 
over  it  They  might  sell  or  transfer  it  to  the  sovereign,  who  dis 
covered  it;  but  they  were  denied  the  authority  to  diHpose  of  it 
to  any  other  pentuns;  and  uuti)  such  a  sale  or  transfer,  they 
were  generally  permitted  to  occupy  it  as  sovereigns  df  facto. 
But  notwithataading  this  occupancy  the  European  discoverers 
claimed  and  exercised  the  right  to  grant  the  soil,  while  yet  in 
pOBseMlOQ  of  the  nati\-«s,  subject  howe^*er  to  Uieir  right  of  oc- 
cupBOCy;  and  the  title  so  granted  was  universally  admitted  Uy 
oonray  a  sufficient  title  in  the  soil  to  tlie  gnuitee*  in  perfect 
dominion,  or,  aa  it  is  sometimes  expressed  in  treatises  of  public 
law,  it  was  a  transfer  of  plenum  et  utile  dominium. 

S  8.   This  subject  was  discnased  at  great  length  in  the  oelo- 

■  Bu.  (Ml«d.  3 :  HanbaU.  Hut.  C<iL  13.  U. 

■  Chaluiati,  Ahatit,  K«,tn\  I  Doug.  aonw.  113. 


CB.  I.] 


ORIGIN  OP  TOE  TITLB  TO  TEBBITORV. 


Iirated  case  of  Johnson  v.  M'Intosh ;  kntl  one  cannot  do  better 
than  traiiscrilw  frum  the  pugcti  of  tliat  report  n  nuiiimary  of  tho 
historical  coofinnatioiu  adduced  in  support  of  tltc«e  principles, 
which  is  more  clcAr  and  exact  than  has  ever  been  before  in 
print 

§  a  "The  history  of  America,"  My»  Mr.  Chief  Justice  Mar- 
shall, in  delivering  the  opinion  of  the  Court,'  (a)  "from  its 
iliacoTery  to  the  present  day,  proves,  we  think,  the  universal 
recognition  of  the»e  principles. 

'••Sjiain  did  not  rest  her  title  solely  on  the  grant  of  the  Pope. 
Her  discussions  respecting  boumlary,  with  France,  with  dreat 
Britain,  and  with  the  United  States,  all  show  that  she  placed  it 
on  the  riglits  gicen  by  discovery.  Portugal  sustained  her  claim 
to  the  Brazils  by  thu  aamc  title. 

%  to.  **  France,  also,  founded  her  title  to  the  vast  territories 
she  claimed  in  America  on  discorerr.  Hon-c^-cr  conciliatory 
her  conduct  to  the  natives  may  hare  been,  she  still  asserted  her 
right  of  dominion  over  a  great  extent  of  country  not  actually 
a«tt)ed  by  Frenchmen,  and  her  exclusive  right  to  A«r|uire  and 
dispose  of  the  soil,  which  remained  in  the  occupation  of  Indians. 
Her  monarch  claimed  all  Canada  and  Acndie,  a«  colonies  of 
France,  at  a  time  when  the  Frcncli  population  was  very  incon- 
siderable, and  the  Indians  occn)iicd  almost  the  whole  country. 
He  also  oUlmcd  Louisiana,  eomprchonding  the  iuimt;iist;  territo- 
ries watered  by  the  Mississippi,  and  the  rivers  which  empty  into 
it,  by  the  title  of  discovery.  The  letters-patent  granted  to  the 
Sieur  Demonts,  in  ItlOJt,  constitute  h|m  Lieutenant-Oencral,  and 
the  representative  of  the  king  in  Acadie,  which  is  dmcribed  as 
stretching  from  the  40th  to  the  46th  deRrne  of  north  latitude, 
with  authority  to  «xtond  the  power  of  the  French  over  that  coun- 
try and  its  inhabitants,  to  give  laws  to  the  people,  to  treat  with 
the  natives,  and  enforce  the  observance  of  treaties,  and  to  par- 
cel out  and  give  title  to  lands,  according  to  hia  own  judgment 


>  S'HIinL  5t8.  SMduVTonMCOTvOMTgit,  <  P<4«n'*B.  SIS:  4  J«0>Nwa'(O>r- 
mp.  V»;  Mickintofli'*  Hudocrof  EOiicid  Philotopbr  (PliiU.  163».  SO;  JobMoa  *. 
U-iBtod^  8  Wbnt  ft.  STI-AUl 


(a)  8n  WWl  Int.  U«.  pt  t,  cb.  4, 
I  S;  Jfckmm  «.  Wood,  7  JoIim.  »0i 
Cltrt  *.  WUliuDi.  19  rkk.  1»0 1  OoMny 
*.  Bwdtlvr,  S  Ucljmt,  411 ;  OoUmaa  *. 


Dmv  4  S.  a  M.  40 ;  Jonai  ».  tna»,  S 
YFTg.  3iS  1  BowUnd  F.  I>ailie>.  0  Port. 
488  ;  Spukmui  t.  Porter,  t  Faiiw,  U7. 


10 


BISTOBT  OF  TBR  OOLONIEB. 


[boos  I. 


$  11.  "  The  states  of  Holland  sIho  made  acquisitiiHis  in  Amer- 
ica, anil  sustaiucd  (heir  rltrbt  on  the  common  principle  adopted 
by  all  Europe^  Tlicy  allege,  as  we  are  told  by  Smith,  in  his 
History  of  New  York,  that  Henry  Hudson,  who  aailed,  as  they 
say,  nnder  the  orders  of  their  Eaat  India  Company,  discovered 
the  country  from  the  Di'lavrare  to  the  Hudson,  up  which  he 
sailed  to  the  43<!  dc);rcfi  of  north  latitude;  and  thia  country  they 
claimed  under  the  title  flcquirv>d  by  thin  voyage.  Their  fmt  ob- 
jcct  wu«  commercial,  as  appears  by  a  fn^nt  made  to  a  company  of 
ntcrchanta  lu  \*>\4;  but  in  1^21,  the  Stateis^Oenenii  made,  as  wo 
are  told  by  Mr.  Smith,  a  grant  of  the  couiilry  to  the  Went  India 
Company,  by  the  name  of  New  Netherlanda.  Ilie  claim  of  the 
Dutch  waa  alwaya  contested  by  the  English;  not  because  they 
questioned  the  title  given  by  diacover)-  but  iMMraiiHe  they  insisted 
on  being  themselreg  the  rightful  claimants  under  that  title. 
Their  pretenBions  were  finally  decided  by  the  sword. 

§  12.  ''■So  one  of  the  powers  of  Europe  gave  its  full  assent  to 
this  principle  more  unequivocally  than  England.  The  doca- 
menta  upon  Ibis  subject  aro  ample  and  complclc.  So  early  as 
the  year  1496,  her  moiiureh  granted  a  commission  to  Die  Cabots, 
to  disooTer  countries  then  unknown  to  Chrutian  people,  and  to 
take  possession  of  litem  in  the  name  of  the  Kin^  of  England. 
Two  years  afterwards,  Cnlxil  proceeded  on  this  voya^*,  and  dis- 
covered the  continent  of  North  America,  along  which  he  sailed 
as  fur  south  as  Virginia.  To  this  discovery  the  English  timc«i 
their  title.  In  this  first  effort  made  by  Uie  Eiiglisli  gr>vernment 
to  acquire  territory  on  this  continent,  we  perceive  a  coiupk-te 
recognition  of  the  principle  which  has  been  raenlinned.  The 
right  of  discovery  given  by  this  commisBJon  is  confined  to 
oounlries  '  then  unknon-n  to  Christian  people ; '  and  of  these 
countries  Cabot  was  empowered  to  take  possession  in  the  name 
of  the  King  of  England.  Tlius  asserting  a  right  to  take  pos- 
session, ntjtwithstuiMling  the  oocuptincy  of  the  natives,  who 
vero  heatlnMis,  and,  at  the  same  time,  admitting  the  prior 
title  of  any  Christian  people,  who  may  ha^-e  made  a  previous 
discovery. 

§  13.  "'Ilie  same  principle  continued  to  be  recognixed.  The 
charttT  granted  to  Sir  Humphrey  Oilbert,  in  1.^78,  authorizt^ 
him  t>i  di3e()rcr  and  take  possession  of  such  remote,  hnithen, 
and  barbarona  lands,  as  were  not  actually  possessed  by  any  Chris- 


CH.  I.] 


OBtttlN  OP  THE  TITLE  TO  niBBITOBY. 


11 


tian  prince  or  people.  This  charter  was  aftenrordB  renewed  to 
8ir  Walter  Kalei^h,  in  nearly  the  same  terms. 

§  14.  "By  tlic  i-harter  of  1C06,  under  which  the  first  pcrma- 
nt-Dt  English  BCtUemcnt  on  thia  eontiaent  was  made,  Jnmc8  tJic 
Rr»t  granted  to  Sir  Tliomiui  Gatvs  and  othera  tbotie  territories 
in  America  lying  on  the  sesi-coust  between  the  S4th  and  4ftth 
tlugree  of  north  lutitudc,  and  which  cither  belonged  to  that  Dion- 
urch,  or  were  not  tlicti  poseeued  by  any  other  Christian  prince 
or  people  Hie  gnmtecfl  were  divided  into  two  compfinien  at 
tbeir  own  request  The  first,  or  southcni  colony  was  directed 
to  settle  between  the  84tli  and  4l8t  de^^-cs  uf  north  latitude; 
and  the  second,  or  northern  colony,  between  the  38th  ajid  4oth 
degrees. 

§  15.  **!»  1609,  after  some  cxpcDsivc  and  not  very  successful 
attempts  at  settlement  had  been  made,  a  new  and  more  cnlariied 
charter  was  g)i-<:-n  by  the  crown  to  tlie  first  colony,  in  which  the 
king  granted  U>  the  'Treasurer  and  Company  of  Adventurers  of 
the  city  of  London  for  the  first  colony  in  Vii^inia,'  in  absolute 
|M«perty,  the  lands  extendiiii;  along  the  sea-nxnat  four  hundred 
miles,  and  into  the  land  thnxighoul  from  sea  to  sea.  This  char- 
ter, whicli  is  a  part  of  the  special  verdict  in  this  cause,  was 
annulled  so  far  as  respwied  the  rights  of  tlie  company,  by  the 
judgment  of  tJie  Court  of  King's  Uench  on  a  writ  of  yiw  wat- 
ranta;  but  tlie  whole  effect  allowed  to  this  jiidgmeDt  was,  to 
rerest  in  the  crown  the  powers  of  government,  and  the  title  to 
the  lands  witliin  its  limits, 

§  Id.  "  At  the  association  of  those  who  held  under  the  grant  to 
the  second  or  northern  colony,  a  new  and  more  enlarged  diarter 
was  granted  to  the  Duke  of  Lenox  and  others,  in  1620,  who  were 
denominated  the  Plj-mouth  Company,  conveying  to  tJiem  in  abso- 
lute property  all  the  lands  between  the  401h  and  48th  degrees  of 
nortli  latitude.  Under  this  potent.  New  Engliind  has  been  in  a 
great  measure  settled.  The  company  conveyed  to  Henry  Iluse- 
well  and  others,  in  1G27,  that  territory  which  is  now  Massachu- 
setts; and  in  1628,  a  charter  of  iaeorporatlon.  comprehending 
the  powers  of  government,  was  granted  to  the  purchasers.  A 
great  part  of  New  England  was  granted  by  this  company,  which, 
at  |i>n>r1h,  divided  their  remaining  lands  among  themselves; 
and,  in  lt!3.>,  surrendered  their  charter  to  the  crown.  A  patent 
was  granted  to  Gorges  for  Maine,  which  wag  allotted  to  him  in 


12 


HISTOttr  OP  THE  ooLoxica. 


[dookl 


tho  diviginn  of  propertj-.     All  the  fcmntu  made  by  thu  Plymoutli 
Compunv,  so  far  an  ve  can  loam,  have  been  respected. 

§  17.  "In  pursuance  of  the  same  prmciple,  th«  king.  In  1664, 
granted  to  "the  Duke  of  York  the  country  of  New  England  as  far 
(wulh  as  the  Delaware  Bay.  Hia  royal  hif,'l>nc«w  transferred  New 
Jersey  to  Lord  Berkeley  and  Sir  OcorRo  Cnrtt>rc(. 

§  18.  "In  16138,  tlio  crown  gronbi-d  to  Lord  Clarendon  and 
others  the  countrj-  lying  between  the  SGth  dcKroo  of  nortli  lati- 
tude aud  the  river  .St.  Matliea;  and  In  1666,  the  proprietors  ob- 
tained from  the  crown  a  new  charter,  pmnthig  to  them  tliat  pror- 
in<!c  in  the  kin);'a  dominions  in  North  America,  which  liea  from 
86  degrcea  SO  minittes  north  latitude  to  th«  29th  degree,  and 
from  the  Atlantic  Ocean  to  the  Hoitth  Sea. 

§  19.  **  Thus  has  utir  whole  country  been  granted  by  the  crown 
while  in  tlie  occupation  of  the  Indianx.  Thoao  grants  purport  to 
coniTv  tho  soil,  ns  well  us  th«  right  of  dominion,  t:0  the  grantees. 
In  thtwc  governments  which  were  denominntcd  royal,  where  tho 
right  to  tlic  soil  was  not  vested  in  indiridnals,  but  n>maincd 
in  tJie  crviwn,  or  was  vested  in  the  colonial  government,  the  king 
claimed  and  exerriined  tlie  right  of  granting  landn,  and  of  dia- 
membering  the  govemmont  at  his  will.  The  grants  made  out  of 
the  two  original  colonies,  after  the  resnmptjon  of  tJieir  rharlers 
)>y  the  crown,  are  examples  of  tbix.  The  goremmenta  of  New 
I^nglaitd,  Now  York,  New  Jersey,  Pennsylvania,  Maryland,  and 
a  part  of  Carolina  were  thna  created.  In  all  of  them  the  soil,  at 
the  time  the  grants  were  maile,  waa  oreupied  by  the  Indiana. 
Yet  almoat  every  title  within  thoae  governments  is  dependent  on 
theae  grants.  In  aome  inKtaneeo,  the  soil  waa  conveyed  by  the 
crown  itoaccompanied  by  the  powera  of  fro^-emmcnt:,  a«  in  tho 
case  of  the  northern  neck  of  Virginia.  It  lias  never  been  ob- 
jected to  tliia,  or  to  any  other  similar  grant,  that  the  title  as  well 
•s  pwutouion  was  in  the  Indiana  when  it  u-aa  made,  kod  that  it 
passed  nothing  on  that  accooat 

§  20.  "Tliese  various  patents  cannot  bo  conaidcrod  as  nnlU- 
ties;  nor  can  tJicy  )>«  limited  to  a  mere  grvnt  of  the  powers  of 
go\emn>ent  A  charter  intended  to  convoy  political  power  mily 
would  never  contain  words  oxpressly  granting  the  land,  the 
soil,  and  the  wateru.  Some  of  them  purport  to  ooav^  the  soil 
slone;  and  in  tbnae  cases  in  which  the  powers  of  govemmetit  as 
well  as  the  soil  ore  conveyed  to  indiridnals,  the  crown  has  always 


CB.  I.] 


ORIGIH  OP  THE  TrTLE  TO  TESBITtiKY. 


18 


acknowledged  itoelf  to  bu  bound  by  the  grant.  Though  the  power 
to  dittiiicmlxsr  rugal  govcrumontn  wuh  a«ti«rt«d  and  exprciacd, 
the  power  todi»i»cmbcFpruprt<.-tarjgovctrmucntawas  not  claimed. 
And,  iu  some  instaiicen,  vwu  after  the  powora  of  government  were 
reveeteii  in  the  cruwn,  the  title  of  the  proprietors  to  the  aoil  vaa 
respected. 

f  21.  "Charlo*  the  Second  was  extremely  anxious  to  acquire 
the  property  uf  Uuinu,  but  tJie  grantecA  sold  it  to  Maiuiachusotta, 
and  he  did  not  venture  to  contest  tbo  ri^t  of  tbo  colony  to  the 
soil.  The  Carulinua  were  ori)!iuaIly  proprietary  goTCniniontii, 
Id  172),  a  revolution  was  effected  by  the  peopU\  who  sliuok  off 
their  obedience  to  tlie  pruprietont,  and  declared  Uieir  depcndeuoc 
immediately  on  the  crowu.  The  kiug,  howercr,  purchased  the 
title  of  tlioae  who  were  disposed  to  scli.  One  of  them,  I>ord 
Carteret,  surrendered  his  intereat  in  the  government,  but  retained 
his  title  10  the  soil.  That  title  wag  re»|)ected  till  the  Revolu- 
tion, when  it  was  forfeited  by  the  lawa  of  war. 

S  22.  "  Furtlier  proofs  of  tlie  extent  to  which  this  principle 
hag  been  recognized  will  be  found  in  the  history  of  the  wars,  ne- 
gotiations, and  treaties  which  the  difTcrent  nations  claiming  ter- 
ritory in  America  have  carried  on,  and  held  with  CAch  other. 
Ilw  contests  between  the  cabinets  of  Veraaillcs  and  Madrid  re- 
specting the  territory  on  tJie  nortlicm  cotut  of  the  tliilf  of  Mexico 
were  fierce  and  bloody;  and  continued  until  the  ejitabliahment 
of  a  Bourbon  on  the  throne  of  Spain  pntduced  such  amicable  dis- 
poaitiona  in  the  two  crowns  as  to  suspend  or  terminal*!  them. 
Between  France  and  Great  Uritain,  whose  discoveries,  as  well  aa 
settlements,  were  nearly  contemporaneous,  ountests  for  the  coun- 
tty  actually  covered  by  the  Indiana  lie^an  as  soon  as  their  aettle- 
ments  approached  each  other,  and  were  continued  until  finally 
settled,  in  the  year  1768,  by  the  treaty  of  Paris. 

$  23.  "^  Each  nation  had  grant^-d  and  partially  settled  the  coun- 
try denominated  by  the  French  Aoadie  and  by  the  Hnglish  Xova 
^otia.  By  the  12th  article  of  the  treaty  of  Utrecht,  made  in 
1708,  his  most  Christian  Uajoaty  ceded  to  the  Queen  of  Great 
Britain  'all  Nova  Hcotia,  or  Aoadie,  with  its  ancient  boiinda- 
rieo.'  A  great  part  of  the  ceded  territory  waa  in  ponesaion  of 
the  Indians,  and  the  extent  of  the  cession  could  not  be  adjusted 
by  the  commisiiioners  to  whom  it  waa  to  be  referred..  The 
ti«aty  of  Aix  la  Chapelle,  which  waa  made  on  the  principle  of 


14 


BISTORT  OP  THE  OOLOKISa. 


[BOOK  I. 


the  ^tat^u  ant4  helluva^  did  not  remove  this  subject  of  contro- 
verey.  Gominisntoiiers  for  its  adjustment  van  upjMiinted,  vhoae 
very  nblo  nnd  elaborate,  though  unsuc<M?ftsful  ar^imvuts  in  favor 
of  the  title  of  their  renpectivw  sovcreignii  show  how  cntireiy  each 
relied  on  the  title  given  by  disvorery  to  londfl  remaining  in  the 
pOBSeKsion  of  Indians. 

'  §  24.  "After  the  termination  of  thi«  fruitlMti  digeuBsion,  the 
aubjcct  waa  transferred  to  Kiirupo,  and  tiiktin  up  by  the  caltineta 
fA  Versailles  and  London.  "Vhia  controversy  embraccid  not  only 
the  boundaries  of  New  England,  Nova  8ootia,  and  that  part  »l 
Canada  wbiob  adjoined  thtwe  colonies,  but  embraced  our  whole 
Wititcm  country  alMX  Franoo  contended  not  only  that  the  St 
Lttwrenot!  wag  to  Ik>  considered  as  thn  centro  of  Canada,  but  Uiat 
the  Ohio  una  uitliin  that  colony.  She  founded  this  claim  ondis- 
corery,  and  on  having  used  that  river  for  the  tranaportation  of 
troofM  in  a  uar  with  some  Southern  Indians.  Thii*  river  was 
comprehended  in  the  chartered  limita  of  Virginia;  but,  though 
the  right  of  England  to  a  reaaonable  ext44nt  of  coimtry,  in  virtue 
of  her  diseovery  of  the  nea-roaat,  and  of  tlie  Rettlementa  ahe  made 
on  it,  vaa  not  to  be  questioned,  her  claim  of  all  lands  to  the  Pa- 
cific Ocean,  because  the  bad  discovered  the  country  wnalied  by 
tlie  Atlantic,  might,  without  den^ating  from  the  principle  reoog* 
nized  by  all,  be  deemed  extravagant  It  interfered,  too,  vith 
the  claims  of  Franco  founded  on  the  same  principle.  She  there- 
fore sought  to  atrenglhen  ber  original  title  to  the  lands  in  con> 
troveray,  by  insigting  that  it  had  been  acknowledged  by  FranoOj 
in  the  15th  article  of  the  treaty  of  Utrecht  The  dispute 
specting  the  construction  of  that  article  has  no  tendency  to  impall 
the  principle  that  discovery  gave  a  title  to  lauds  still  remain* 
ing  in  the  possession  of  the  Indiana.  Whichever  title  pre- 
vailed, it  was  still  a  title  to  lands  occupied  by  the  Indiana,  whoso 
right  of  occupaney  neither  controverted,  and  neither  had  then 
extinguished. 

§  25.  "Thcae  conflicting  claims  produced  a  long  and  bloody 
war.  which  was  terminaU-d  by  the  conquest  of  the  whole  country 
east  of  the  Hissisaippi.  In  the  treaty  of  1T63.  France  ceded  and 
guaranteed  to  Great  Britain  all  Nova  Sootia,  or  Acadie,  and 
Canada,  with  their  deix-ndpucira;  and  it  was  agrewl,  that  the 
boundaries  between  the  territories  of  the  two  natioofi  in  America 
should  be  irrevocably  fixed  by  a  line  drawn  from  the  source  of 


ca.  I.] 


OftiGW  OF  TUB  TITLE  TO  TEEBITOBy. 


15 


the  MittiBsippt,  tliroug:Ii  th«  tniddlo  of  that  rirerand  the  lakes 
Maurepag  and  FuiitchArtrain,  to  Uie  eea.  This  treat}- expressly 
cedes,  and  has  always  been  understood  to  ocde,  the  whole  coua- 
try  on  the  Koglish  side  of  the  dividing  line  between  Uie  two  na- 
tions, although  a  great  and  valuable  part  of  it  was  occupied  by 
the  Indiana.  Great  Britain,  on  her  part,  surrendered  to  France 
all  her  pretcnaiuns  to  the  country  west  of  the  Missisflippi.  It 
baa  novor  bevn  auppusod  that  she  surrendered  nothing,  althou^ 
'  Bho  waa  nut  in  actual  poaaeaaiun  of  a  foot  of  land.  She  surren- 
dered all  riglit  to  acquire  the  country;  and  any  after  attempt  to 
purchase  it  from  the  Indians  would  have  been  considered  and 
trvatcd  as  an  invasion  of  the  territories  of  Franoei 

§  26.  "  By  the  20th  article  of  the  same  treaty,  Spaio  ceded 
Florida,  witli  it«  dependencies,  and  all  the  country  she  claimed 
Mat  or  southeast  of  the  Uississippi,  to  Great  Britain.  Great 
pert  of  this  territory  also  waa  in  p"j8sc»«ii>n  of  tlic  Indians. 

§  27,  "By  a  secret  treaty,  whi<:h  was  esccut*-d  about  the  same 
time,  Frauce  ceded  Louisiana  to  Spain;  and  Spain  has  since 
retroccdvd  the  same  country  to  France.  At  the  time  t>oth 
of  its  cesaiua  oud  rctruccssiou,  it  was  occupied  chiefly  by  the 
Indiana. 

$  28.  "Thus,  all  the  nations  of  Europe  who  have  Acquired  ter- 
ritory on  this  continent  have  asserted  in  themselves,  and  have 
reeo^ized  in  others  the  exclusive  ri(;ht  of  the  discovery  to  appro- 
priate tbe  lands  occupied  by  the  Indians.  Have  the  American 
Stat4?s  rejected  or  a^lopted  this  principle? 

§  29.  "By  the  treaty  which  cunehided  tlio  war  of  our  Bevolo- 
tion,  Great  Britain  relinquished  all  claim,  not  only  to  tlie  gov- 
ernment, but  to  the  '  propriety  and  territorial  rights  of  the  United 
States,'  whoso  boundaries  were  fixed  in  the  second  article.  By 
this  treaty,  the  powers  uf  government,  and  the  right  to  eoil, 
which  had  previously  been  in  Great  Britain,  psfued  dofinitely  to 
ihiwc  Statfu.  Wu  bad  liefura  taken  poRBension  of  them,  by  de- 
vlarinK  independence;  but  neither  the  Declaratioa  of  Independ- 
eiioe,  nor  the  treaty  confirmini;  it,  could  give  us  more  than  that 
which  wc  iK^fore  possessed,  or  to  which  Great  Britain  waa  l*efora 
entitled.  It  baa  never  been  doubted,  that  either  the  United 
States  or  tbe  several  Ktatea  had  a  clear  title  to  all  the  lauds 
irithin  the  boundary  linca  dcAcribed  in  the  treaty,  subject  only 
lo  the  Iitdiaa  right  of  oocupquicy,  and  that  the  exclusive  power 


16 


BISTORT  OF  THX  COLOKtES. 


[buck  I. 


(0  «xtlDgui«h  thnt  right  was  i-ested  in  that  gorerntDCDt  whicli 
might  ootistitiitionally  exercise  it 

§  30.  "Virginia,  particularlr,  within  whoae  chartrrcd  limita 
the  Und  in  controveray  lay,  piaiui«d  an  act,  in  the  year  1779,  de- 
claring; her  'oxcIiuiTe  right  at  pr<»-empti<m  fruu  the  Indiana  of 
all  the  lands  within  the  lintita  of  her  own  chartered  territory, 
and  that  no  persona  whatsoever  have,  or  ever  had,  a  right  to  pur- 
chase any  landn  within  the  same  from  any  Indian  nation,  excegit 
.  Mily  penwna  duly  authorized  to  make  such  purchase,  fonneriy 
for  the  Hso  and  bonelit  of  the  colony,  and  lately  for  the  Common- 
wealth.' The  act  then  proceeds  to  annul  all  deeds  inadu  by 
Indiana  to  individuals  for  the  private  use  of  the  purchasers. 

§  81,  "Without  ascribing  to  this  act  the  power  of  annulling 
veatod  rights,  or  admitting  it  to  counten*ail  the  testimony  fur- 
nished by  the  marginal  note  opposite  to  the  title  of  the  law  for^ 
bidding  purchases  from  the  Indiana,  in  the  revisals  of  the 
Virginia  statutes,  stating  that  law  to  be  rc'pealed,  it  may  safely 
be  considered  as  an  unequivocal  afllirmattce,  cai  the  port  of  Vir- 
ginia, of  the  broad  principle,  which  had  altcays  been  maintained, 
that  the  exclusive  right  to  purchase  from  thv  Indiana  rcaidcd  in ; 
the  government 

§  82.  "In  pursiiancc  of  the  same  idea,  Virginia  proceeded,  at 
the  same  seaftion,  to  open  her  land-ofTice  for  the  sale  of  that  coun- 
try which  now  conatitutca  Kentucky,  a  country  every  aero  of 
which  was  then  claimed  and  possessed  by  Indiana,  who  main- 
tained thoir  title  with  aa  much  persevering  courage  as  was  ever 
manifested  by  any  people. 

j  88.  "The  States  having  within  their  chartered  limits  differ* 
ent  portions  of  territory  covered  by  Indians,  ceded  that  territ»ry, 
generally,  to  the  United  States,  on  eondiliona  expressed  in  their 
deeds  of  cession,  which  demonatrate  the  opinion  that  they  ceded 
the  soil  as  well  as  jurisdiction,  and  that  in  doing  so  they  granted 
a  productive  fund  to  the  government  of  the  Union.  The  lands 
in  controversy  lay  witliin  the  chartered  limits  of  Virginia,  and 
wore  ceded  with  the  whole  country  northwest  of  the  river  Ohio, 
This  grant  contained  rc«crv»tions  and  stipiilatimis,  which  could 
only  be  made  by  the  owners  of  the  soil;  and  concluded  with  a 
stipulation,  that  'all  the  lands  In  tlie  ceded  territory,  not  re- 
served, should  be  considcned  as  acomiuou  fund,  fur  the  use  and 
benefit  of  such  of  the  United  States  as  have  become,  or  ahall  be- 


CH.  I.] 


OEIOIN  OP  THB  TTTLB  TO  TERSITOBT. 


n 


eom«,  mombera  of  tbe  eonMoratioo,'  Ac,  '  according  to  their 
iniial  rcftpcctiTo  proportioiu  in  the  general  charge  and  Dxpendi- 
tnrc,  and  iihall  l>o  faithfully  and  ton4  fide  disposed  of  for  that 
purpoee,  and  for  no  other  use  or  purpose  v-hatsoeTCir. '  The  ceded 
territory  wa«  occupied  by  numerous  and  warlike  tribes  of  In- 
dian*; but  the  exclusive  right  of  the  United  States  to  extinguish 
their  title,  and  to  ^rant  the  soil,  has  never,  we  believe,  been 
doubted. 

§  J4,  "After  these  States  became  independent,  a  controversy 
subsisted  between  them  and  Spain  respecting  boundary.  Ity  the 
treaty  of  1795,  this  controversy  was  adjusted,  and  Spain  ceded 
to  the  United  States  the  territory  in  question.  This  territory, 
tlioafch  claimed  by  both  nations,  was  chicfiy  in  the  actual  occo- 
paticM)  uf  Indians. 

§  35.  "llie  m^i^ifieent  purchase  uf  Louisiana  was  the  pur- 
chase from  France  of  a  country  almost  cutin-ly  occupied  by  nu- 
merous tribra  uf  Indians,  who  are  in  fnct  inde^mndent.  Yet, 
any  attempt  of  oUiers  to  intrude  Into  that  euuntry  would  be 
considered  as  an  aggression  which  would  justify  war. 

$  3t>.  "  Our  late  acquisitions  from  Spain  arc  of  the  same  char- 
acter; and  the  negotiations  which  preceded  those  acquisitions 
reoo^izu  and  elucidate  the  principle  which  has  been  received  as 
the  foundation  of  all  Kuropenn  title  in  America. 

§  87.  "The  United  States,  then,  have  unequivocally  acceded 
to  that  forest  and  broad  rule  by  which  its  civilixed  inhabitants 
now  hold  this  country.  Thoy  hold,  and  assert  in  themselves, 
the  title  by  which  it  was  acquired.  They  maintain,  as  all 
others  have  maintained,  that  discovery  gave  an  exclusive  riglit 
to  extinguish  the  Indian  title  of  occupancy,  either  by  purchase 
or  by  conquest ;  an<l  gave  also  a  right  to  such  a  degree  of  sover- 
eignty as  the  circumstances  of  the  people  would  allow  them  to 
exercise, 

5  38.  "The  power  now  posseased  by  the  government  of  the 
United  States  U>  grant  lands  resided,  while  we  were  colonics, 
in  the  crown  or  its  grantees.  The  validity  of  the  titles  given 
by  cither  has  never  bven  questioned  in  our  courts.  It  has  been 
exercised  uniformly  over  territory  in  possession  of  the  Indians. 
The  exiKtcDCo  of  this  power  must  negative  the  existence  of  any 
right  which  nay  conflict  with  and  control  it.  An  absolute  title 
to  lands  cannot  exist,  at  the  same  time,  in  different  persona,  or 
VOL.  t.  —  2 


18  HISIOBT  OF  THB  OOLONIB.  [BOOK  I. 

ia  different  gDrenunents.  An  absolute  must  be  an  exclusive 
title,  or  at  least  a  title  which  excludes  all  others  not  compatible 
irith  it  All  our  institutions  recognize  the  absolute  title  of  the 
crown,  subject  onlj  to  the  Indian  right  of  occupancy,  and  rec- 
c^ize  the  absolute  title  of  the  crown  to  extinguish  that  right 
This  is  incompatible  with  an  absolute  and  complete  title  in  the 
Indians. " 


cu.  u.j 


OaiUIM   AND  BBTTLEHEKT  OF    rlBOUtU. 


19 


CHAPTEK  II. 


OBtGtN   AKD  SETTLEMEST  OP   TTBOIKU. 


§  89.  Having  thm  traced  out  the  origin  of  the  title  to  the 
Roil  of  America  a88«rtfi(l  by  the  Kiiropean  natioiu,  we  may  now 
eiit«r  upou  a  considtmtioi)  of  the  manner  in  which  the  scttle- 
meul«  were  made,  and  of  the  political  constitutions  by  which  the 
various  colonies  were  organized  and  governed. 

§  40.  For  a  long  time  after  the  di»coveriea  of  Cnbot  were 
matif,  England  from  various  cauftea  remained  in  a  atate  of  indif- 
ference or  inactivity  in  respect  to  the  territory  thus  subjected  to 
her  away.'  Nearly  a  century  e]a)>sed  before  any  effectual  ;>lan 
for  planting  any  colony  waa  put  into  0|)eratioR;  and  indeed  the 
ill  success,  nut  to  say  entire  failure,  of  the  first  expedition  was 
well  cak-ulated  to  abate  any  mit!u«  confidence  in  the  value  of  such 
uuterpritH.-s.  In  1578,  Sir  Ilumphrcy  Gilbert,  having  obtained 
letters-patent  from  Queen  Elizabeth,*  granting  him  and  his  beira 
any  landa  dist-overcd  by  hira,  attempted  a  m^ttlement  on  the  cold 
and  barren  shores  of  Capo  Breton  and  the  adjacent  regions,  and 
exhausted  his  fortune  and  lost  bis  life  in  the  fruitless  labor.' 
The  brilliant  genius  of  Sir  Walter  Raleigh  was  captivated  by  the 
allurements  of  any  scheme  which  gave  play  to  his  romantie 
temper;  and  unmindful  of  tlic  dtBastruus  fate  of  his  half- 
brother,  or  gathering  fresh  courage  from  the  consciuiisncss  of 
difficulties,  eagerly  followed  up  tlw  original  plan  under  a  new 
patent  fntm  the  crown.*  To  him  we  are  indebted  fur  the  first 
plantations  in  the  South;'  and  such  wa«  the  splendor  of  the  de- 
scription of  t)H>  soil  and  climate  and  producliona  of  tliat  region 
given  by  tlie  first  adventurers,  that  Eliital^etli  was  proud  to  )>e- 
stow  upon  it  the  name  of  Firytnio,  and  thus  to  connect  it  with 
the  reigo  of  a  virgin  Qiie«u.*    But  nutwithstnnding  the  bright 

>  KnbrrUon'ti  Ameriia,  B.  S ;  Doof.  Summ.  110,  ac 

*  1  H«i.  Call.  !4. 

*  HnluiD'i  Colon.  IS.  tS :  BolMtna'*  Amerfo^  B.  9. 

*  I  Hue.  Coll.  33  ;  RotsttMB'*  AmeriM,  B.  9. 

*  1  Ha.  Onll.  39-10 ;  S  Dong.  Bamaa.  SSS. 
■  Hand.  Culoo.  K;  UobNtwa'*  Anwrk^  B.  9. 


20 


■VIOBT  OF  TBB  COLONIES. 


[BOOK  t. 


prospects  titofl  held  ont,  three  sucoesBiTo  attempts  under  the  aiw- 
pioes  of  Raleigli  ended  in  a  ruinotM  disaster,  and  seemed  but  & 
presag«  of  the  hard  fate  and  darkened  fortunes  of  that  gallant 
but  nnfortunate  ge-ntlenian.  * 

§  41.  llie  tirat  permanfiit  settlement  made  in  America  under 
the  au8piir«8  of  England  was  under  a  charter  granted  to  8ir 
Thomas  Gates  and  his  associates  by  James  the  First,  in  the 
fourth  year  after  his  accession  to  the  throne  of  England'  (in 
160S).  That  charter  granted  to  them  the  territories  in  America, 
then  commonly  culled  Virginia,  lyin;^  on  tne  sea-coast  bHween 
the  34th  and  the  46th  di'^rvi'^t  of  north  latitude  and  the  islands 
adjacent  within  100  miles,  whicli  were  not  belonging  to  or  poe- 
scjMod  by  any  Christian  prince  or  people.  The  associates  were 
divided  into  two  companies,  one  of  which  was  ri-quired  to  settle 
between  the  S4th  and  4l8t  degrees  of  north  latitude,  and  the  other 
between  the  38th  and  46lh  degrees  of  north  latitude,  but  not 
within  100  miles  of  the  prior  colony.  By  degrees  che  name  of 
Virginia  was  confined  to  the  first  or  soath  colony.'  The  second 
assumed  the  name  of  the  Plymouth  Company,  from  the  n>sidene«| 
of  the  original  grantees;  and  New  Plngland  was  fmmded  under 
their  auspices.*  Ir^ch  colony  had  exclusive  propriety  in  all  the 
territory  within  fifty  miles  from  the  first  seat  of  their  plantatloo.' 

§  42.  ^xuQ  of  the  provisions  of  this  charter  deserve  a  particu* 
lar  consideration  from  the  light  they  throw  upon  the  political 
and  civil  condition  of  the  persons  who  should  become  inhaliitantaj 
of  the  colonies.  The  companies  were  authoriii?^)  to  engage 
colonists  any  of  the  subjects  of  England  who  should  Iw  disp 
to  emiKrate.  All  persons  being  English  subjects  and  inhabiting 
in  the  culonicn,  and  every  one  of  their  children  bom  therein, 
were  declared  to  have  and  possess  alt  liberties,  franchises,  and' 
immunities,  within  any  other  of  the  dominions  of  thn  crown,  to 
all  intents  and  purposes  as  if  they  hod  been  abiding  and  bom 
within  the  malm  of  England,  or  any  other  duminions  of  ttiu 
crown.  The  patentees  were  to  bold  the  hinds,  Ac,  in  Uie  col- 
ony, of  the  king,  his  heirs  and  suecessors,  as  of  the  manor  of 
East  Greenwich    in   the  county  of   Kent,  in  free   and   common 

>  RabfTtaon'a  ABtrioi,  B.  ». 

>  llanh.  CdUm.  a ;  1  Hu.  OM.  lA  ;  Bobotwa'*  Anerfaw.  B.  9. 

*  1  Bu.  CWL  W ;  BobrnMii'i  America,  a  B. 

*  RobtrtMn'a  Anccio,  B.  S.     -  *  1  a«.  CoU.  w. 


CH.  If.] 


OHIGIK   INR  SETTLEHENT  OP  TIBQIHIA. 


21 


socage  only,  narj  not  in  eapitt;  and  were  autliorixet]  to  grant  the 
same  to  tho  inhabitants  of  the  colonies,  in  such  manut-r  and  form 
and  fur  otiirh  mtatea  as  tJie  council  of  the  culonj  ahouM  diruct.* 

§  4S.  In  reapcct  to  political  i^rcmincnt,  each  culonr  wua  to 
be  ii^orcrnod  by  s  lucul  i^uiivJl,  appointed  and  removuble  at  the 
picuurc  of  the  crown,  according  to  tJic  royal  iuatructioiLS  and 
ordinances  from  time  to  time  proinulgat«cL  ThcM  councils 
wcro  to  l*e  under  t)w  8U)>erior  management  and  direction  of  an- 
other coimcil  sitting  in  Ifngland.  A  power  was  given  to  expel 
all  intntdi^nt,  and  to  lay  a  limited  duty  upon  all  [tcnwna  traftirk< 
ing  wilii  the  colony;  and  a  pnthibition  was  tnijKisod  upon  all 
the  coloniflta  against  trafficking  with  foreign  countriea  under  the 
pretraoe  of  tradn  from  the  mother  cwmtry  to  the  colonies." 

§  44.  The  n>yal  authority  soon  found  a  gratifying  employment 
in  drawing  up  and  establishing  &  code  of  fundamental  regula* 
tiona  for  these  colonieB,  in  pursuance  of  the  power  reaened  in 
t}ic  charter.  X  superintending  council  was  created  in  England. 
The  Icgislatiro  and  csecntive  powers  were  vested  in  the  president 
and  councils  of  the  colonics:  but  their  ordinances  were  nut  to 
touch  life  nor  limb,  and  were  in  subetanec  to  confurm  to  the 
laws  of  ^igland,  and  were  to  continue  in  force  only  nntil  made 
Toid  by  the  crown,  or  the  council  in  England.  Persona  commit- 
ting high  ofTences  were  to  bo  sent  to  England  for  punishment; 
and  sobonlinate  offences  were  to  be  punished  nt  the  discretion  of 
the  president  and  council.  Allegiance  to  the  crown  was  strictly 
inaiated  on;  and  the  Church  of  England  i-stabllBhcd.'  Tlie  royal 
authority  was  in  all  respccta  made  paramount ;  and  the  value  of 
politico)  liberty  was  totally  oi-crlooked,  or  deliberately  diaregardod. 

§  45.  The  charter  of  the  first  or  Virginia  colony  was  aucccs- 
sively  altered  in  1609  and  16112,*  without  any  importiint  change 
in  its  aubstantial  proviaions,  as  to  the  civil  or  political  riglits  of 
^tbo  oolunlHtH.  It  is  surprising,  indeed,  that  diarter*  securing 
.such  vnttt  |>ower8  to  the  crown,  and  such  entire  dependence  on 
tlio  port  of  the  emigrants,  ahonld  have  found  any  favor  in  ll>e  eyes 
pithi*r  of  the  pn>i>rietors  or  of  the  people.  By  placing  the  whole 
legislative  and  executive  powers  in  a  council  nominated  by  the 


1  I  Vu.  ColL  M :  Ibnh.  Oolw.  «S.  M :  KobertHa'k  kamim,  B.  *. 

■  1  Hu.  CoIL  EG  ;  ManlL  Colon.  24. 

•  Hm»)i.  f«1<>ii.  37.  !S. 

i  1  Hu.  CM.  es,  7ti  ManL  Cotcii.  ii.  iS.  »  ;  Sobtrtaon's  kmn.  B.  «. 


22 


HtSTOBr   OP  TUE  COLO.trES. 


[booe  1. 


crown,  and  iruidod  bj  its  instruutioaa,  every  person  settling  ia, 
America  seenu  to  have  been  beronrod  of  the  noblest  priviteg 
of  a  fret!  man.     But  withmit  lieitittitiuu  or  ruliicbmce,  the  propri-.! 
etors  of  both  colonk-ii  prepared  to  execute  dieir  respective  pliinx; 
and  under  the  authority  of  a  charter,  which  would  now  be  re* 
jected  with  disdaiu  as  a  violent  invasion  of  the  sacred  and  in- 
alienable rightit  of  liberty,  the  first  permnneut  »ettlenivnt«  of  ibe 
fetgliflh  in  America  were  e8tabli»h<>d.     From  this  |>eriod  tJie 
pro^rras  of  the  two  provinces  of  Virginia  and   New   England) 
(onna  a  regular  and  connected  fttory.     The  fonner  in  the  .South, 
and  the  Utter  in  the  North,  may  he  considered  as  Die  original 
and  parent  colonies,  in  imitation  of  which,  and  under  whoae  aheU 
ter,  all  the  otheni  have  been  succewively  planted  and  reared.' 

§46.  Th«  settlements  in  Virginia  were  carUeBt  in  point  of 
date,  and  were  fast  advancing  under  a  policy  whieh  Hubdivided 
the  propt-rty  among  the  settlers,  insti'ad  of  retaining  it  in  com- 
mon, and  thna  gave  vigor  t<)  private  enlerprise.  As  thp  colony 
increased,  the  spirit  of  its  inetnbers  assumed  more  and  more  the 
tone  of  independence;  and  they  grew  restless  and  impatient  for 
the  privileges  enjoyed  under  tJie  gorenunent  of  their  uativo 
countr>-.  To  quiet  this  uncasinc«s,  Sir  George  Teardley,  then 
the  governor  of  the  eolimy,  in  llilSl,  called  a  general  aimembly, 
compOHcd  of  representatives  from  ihe  various  plantations  in  the 
colony,  and  permitted  them  to  ossiunc  and  exercise  the  high 
functions  of  legislation.*  Thus  was  formed  and  eslahtiahed  the 
first  representative  legislature  lliat  ever  sat  in  America.  And 
this  example  of  a  domestic  parliament  to  regulate  all  the  inter- 
nal concerns  of  the  country  was  never  lost  sight  of,  but  was  e^'er 
afterwards  cherished  throughout  America,  as  the  dearest  birth- 
right of  freemen.  So  acceptable  was  it  to  the  |M.>oplc  and  so 
indispcnsabU*  to  the  n>ai  prosperity  of  the  colony,  th*>tt  Ihe  coun- 
cil in  Bugland  wore  rompn) led,  in  1>>21,  to  issue  an  ordinance, 
which  gave  it  a  complete  and  permanent  sanction.*  In  imitation 
of  the  constitution  of  the  British  Parliament,  the  legislative 
power  was  lodged  p«rlly  in  the  governor,  who  held  the  place  of 
the  sovereign;  partly  in  a  council  of  state  named  by  the  oom- 

■  I  qooU  tha  VMj  vorda  U  Dr.  RolwrfMa  tluMigbMrt  tUt  pMMfs  Tor  Ut  tfiiit  mnd 
gwnl  tntk.     BolxH.  HbA.  of  Anwrio*.  B.  t. 

■  R»bntMB'(  AinericM,  R.  9;  Mwulu  Oolan.  eI:,  9,  f.  51. 
*  BMnin^  6W.  Ill  i  Utitli'i  Vlf|.  Ap|>.  Ko.  4,  {>,«»:  1  Cliafan.  Anmh.  tL 


CB.II.] 


ORIOm   AND  BETTLEMEKT  OF   TIBGINIl. 


ss 


Qj;  and  purtl}-  in  na  aMcmbljr  coinpo«ed  of  reprcsontativet 
freely  cho«cn  hy  th«  people.  Bach  breiivb  of  the  Icf^isluturo 
might  decide  by  a  majority  of  voices,  and  «  iir^tivc  waa  reserved 
to  the  governor.  But  no  law  was  to  be  in  force,  though  approved 
by  all  three  of  the  branches  of  the  legislature,  until  it  wan  rati- 
fied by  a  general  court  of  the  company,  and  rctitnicd  under  its 
«e&l  to  the  colony.*  llic  ordinance  further  required  Uic  general 
■asembly,  as  also  the  eouncil  of  state,  "to  imitate  and  follow 
the  policy  of  the  form  ai  government,  laws,  cttstoms,  and  man- 
ner <A  trial  and  other  udminiatration  of  justiee  uMed  in  the  realm 
of  England,  as  near  ss  may  he."  The  eondiict.  of  the  colonists, 
afl  well  as  the  company,  soon  afterwards  gave  olTence  to  King 
James;  and  the  disastern,  which  accomplished  an  alnrast  total 
destruction  of  the  colony  hy  the  «ucc«wiful  inroads  of  the  Indi- 
ana, crested  much  discontent  and  disappointment  among  the  pn>> 
prietora  at  homo.  The  king  found  it  no  difticiilt  matter  to  satisfy 
the  nation  that  an  inquiry  into  thoir  conduct  was  necesKary.  It 
was  accordingly  ordered;  and  the  result  of  that  inquiry,  hy  com- 
missioners appointed  by  himself,  was  a  demand  on  the  part  of 
the  crown  of  a  surrender  of  the  charters.'  The  demand  wba  re- 
sisted by  the  cora|iiany;  a  9119  itarrant^  was  instituted  against 
them,  and  it  terminated,  as  in  that  nge  it  might  well  be  sup- 
posed it  would,  in  a  judgment,  pronounced  in  16^  by  jiidgea  hold- 
ing their  offices  during  the  king's  pleasure,  that  the  franchisee 
were  forfeited  and  the  corporation  should  be  dissolved.^ 

§  47.  It  docs  not  appear  that  these  proceedings,  although  they 
have  mot  with  severe  rebuke  in  later  times,  attracted  any  indig- 
nation or  symixtthy  for  the  sufTerers  on  this  occasion.  The  royal 
prerogative  was  then  vii^wed  without  jealousy,  if  not  with  favor: 
and  tJie  rights  of  Knglishmen  were  ill  defined  and  ill  protected 
under  a  reign  remarkable  for  no  grout  or  noble  objects.  Dr. 
Rolkertson  lias  nlxtprvod  that  the  company,  like  all  unprosperous 
societies,  fell  unpitied;*  and  the  nation  were  content  to  fnrget 
the  pro8ti«tion  of  private  riglits,  under  the  false  encouragements 


1  JMtnitoa'*  AmtriM,  B.  9 1  Mknk.  CoIm.  eh.  2.  pt  6B  ;  1  U*i.  Calt.  ISL 

•  In  14t3.     See  1  Hu-  OclL  1S5. 

•  lUbertKoi'i  AiM(k%  E  «i  1  Uu.  ColL  l»i  Ibnh.  CoIm.  cb.  S,  pp.«>,  W; 
C^dnun'  Aanak. 

•  KaUrtion'i  Anwrica,  a  ». 


M 


BISTORT  OF  TBS  COLDNIEA. 


[book  I. 


h«Id  out  of  aid  to  the  colony  from  the  benignant  efforts  and 
future  coiinsftlH  of  the  crown. 

§  48l  With  the  fall  of  the  charter  the  colony  came  undvr  tho 
immediate  gioveramnnt  and  control  of  tho  croim  itsvlf;  and  the 
kini;  issued  a  spttcial  commicution  appointing  a  goTcmor  and 
twelve  counsellors,  to  whom  the  entire  direction  of  its  affairs 
was  committed.  I  In  this  commission  no  rcprc«cntative  asaembly 
was  mcntion«!d;  and  there  is  little  roason  to  suppose  that  James 
tlie  First,  who,  bcstdos  his  arbitrary  notions  of  KOVcmmoQl^  im* 
puted  the  recent  disasters  to  (hi^r  c.\isk>iiix>  of  such  an  assi^mbly, 
ever  intended  to  revive  it.  WbiK^  ha  was  yet  meditating  upon  a 
plan  or  code  of  government,  his  doatli  put  an  ejid  to  his  projects, 
which  were  better  calculated  U)  nourish  his  own  pride  and  con- 
oeit,  than  to  subserve  the  permanent  interests  of  tho  province,* 
Henceforth,  however,  Virginia  continued  to  be  a  royal  province 
until  the  period  of  the  American  Revolution.' 

§  49.  Charles  Che  First  adopted  the  notions  and  followed  out 
in  its  full  extent  the  colonial  system  of  hia  father.*  He  doclarod 
tho  colony  to  be  a  part  of  the  empire  annexed  to  the  crown,  and 
immediately  subordinate  U*  its  innsdiction.  During  the  greater 
part  of  bis  reign,  Vii^iuia  knew  no  other  law  than  the  wilt  of 
tbe  sovereign,  or  his  delegated  agenta ;  and  statutes  were  passed 
Slid  taxes  inijMMcd  without  the  slightest  effort  to  convene  a  colo- 
nial ssscmbly.  It  was  not  until  Uio  murmurs  and  complaints 
which  such  a  course  of  conduct  was  calculated  to  produce  had 
bctraypd  Uic  inhabitants  into  acts  of  open  resistance  to  the  gnr- 
cmor,  and  into  a  firm  demiind  of  rodretis  from  tltc  crown  against 
his  oppressions,  tJiat  the  king  was  brought  to  more  considerate 
measures.  He  did  not  at  once  yield  to  their  discontents;  but 
pressed,  as  he  was,  by  acrero  embarrassments  at  home,  he  was 
content  to  adopt  a  policy  which  would  conciliate  the  colony 
and  remove  some  of  its  junt  complaints.  He  accordingly  sooa 
afterwards  appointed  Sir  Wiliinm  Berkeley  governor,  with  pow- 
ers and  instructions  which  breathed  a  far  more  benign  spirit 


1  I  R«t.  C«fl.  t», 

•  Hmk.  C»lun-  ch.  I  pp.  M.  CI ;  1  Hu.  Coa  18». 

•  1  Bu.  CoU.  2W,  1!S. 

•  It  aean*  Hat  a  durtn  wm  wbMqttFDtljr  gtmnuA  by  Ohariw  the  8«oa«d  on  t)>t 
lOUt«f  Oetotar,  1(76.  bnl  it  oonuijieil  littk  nan  than  u  arJutowleagMMt  of  lb* 

I  Dttonr  M  mo  boBcdUt*  dipMiilnrr  of  tbe  ovwa.    9  Hami^  Sub  W,  US. 


OH.  II.] 


OaiQlH   kVD  SETTLEMEKT  OF  riROl.VIA. 


26 


He  wu  ftntltoriKfd  to  proclaim,  that  in  all  its  concenui,  civil  as 
well  as  eccIrfliattliRal,  the  colony  should  be  governed  according 
to  the  lawn  of  England.  He  was  directed  to  issue  writs  for  elect-' 
ing  repreaentatives  of  the  people,  who  with  tho  governor  and 
council  should  form  a  grncrul  mtscmbly  clothed  with  snpreme 
legislstire  authority;  and  to  Mtablish  courts  of  justice,  whono 
prod'cdingH  should  bo  guided  bv  the  forms  of  tliu  jHircnt  country. 
The  rights  uf  Kiiglishmen  were  thus  in  a  grcut  mcusurc  secured 
to  tbc  colonist*;  and  under  tho  government  of  this  excellent 
listTiite,  with  some  short  intervals  of  intorruptiun,  the  cotonj 
'flotirished  with  n  vigorous  growth  for  ulmost  forty  years.'  The 
revolution  of  1688  found  it,  if  not  in  the  practical  poBMsslon  of 
)i)>erty,  at  least  with  forms  of  goremment  well  calculated  silently 
to  cherish  its  spirit. 

§  do.  llie  laws  of  Virginia,  during  its  colonial  state,  do  not 
exhibit  as  many  marked  deviations,  in  the  general  structure  of 
its  institutionH  and  civil  polity,  from  those  of  the  parent  countiy, 
as  tliofte  in  the  Northern  colonies.  The  common  law  was  rec- 
o^ize<d  as  the  general  basis  of  its  jurisprudence;  and  the  legis- 
lature:, with  some  appcaruncc  of  boost,  slated,  soon  after  the 
reetoratjon  of  ('harles  the  Second,  that  they  bad  "endeavored, 
in  all  things,  ae  near  as  the  capacity  and  constitution  of  this 
country  would  admit,  to  adhere  to  tliosc  oxccUeiit  and  often  re- 
fined laws  of  England,  to  which  wc  profess  and  acknowlodfcc  all 
due  obedience  and  reverence"*  The  prevalence  of  the  common 
law  was  also  expressly  providctl  for  in  all  llie  chartcnt  succvs- 
eively  gmnled,  as  well  as  by  tlio  royal  dijclaration.  wlion  the  col- 
ony was  annexed  aa  a  dependency  to  the  crown.  Indeed,  there  U 
DO  leason  to  suppose,  that  the  common  law  was  not  in  its  leading 
feature*  very  ac4!eptal>le  to  the  colonists;  and  in  its  general 
policy  Ute  colony  closely  followed  in  tho  steps  of  tho  mother 
country.  Among  the  earliest  acta  of  the  legiitlature  we  find  tho 
Church  of  England  established  as  the  only  true  church ;  (a)  and 

1  BobotMo'ilBHiM,  B.  9  ;  Hudi.  Armt.  OoL  «h.  2,  pp.  BIl,  tit,  note.    I  bvaaot 

ll  II  r ty  ts  adnrt  putkabriy  to  tba  MM*  «t  dilng*  dariag  th»  dMorbad 

'  pwiod  of  Ui*  Comfliotivnltlt.     H'nnin^  V!i;g.  Stat  Intn^ixtioii,  pp.  It;  li, 

*  S  HenoiBg,  SM.  43.    Sir  WillUm  Berktlc^,  in  kia  umnr  lo  Um  ijiwiliiiH  tt  Uio 
I  OcanfliHHonei^  la  lt7l.    "  Cootnr?  to  tho  Um  of  Ka^Mid,  ««  novar  did,  mt 

fa)  Jalhnon.  Wotki^  I.  M ;  UU  of  of  V.  8..  I.  30« ;  Tcfntt  a.  ■hj\at,  • 
Ibiiioii  br  Bint,  1.  tJ  -,  Buioruft,  Ilirt.      Cnack,  ts. 


26 


HI8T0BY  OP  IHB  C0L0XIE8. 


[book  I. 


ita  doctrines  and  discipline  wero  strictly  enforced.  All  non- 
conformials  wvrc  at  lirst  cumpclk-d  to  Iinltc  tlio  colonf,  and  a 
spirit  of  perwMMition  woa  exemplified  not  fur  behind  the  rigor  of 
the  most  zealotis  of  the  Puritans.  The  clerf(>'  of  tlie  EKtabUtthed 
Cburvh  were  umplj'  provided  for  by  glebce  aiid  titbeis  uud  other 
aids.  Non-resideiico  was  prohibited,  and  a  due  perfonnance  of 
imrochial  duties  peremptorily  required.  'Ilie  laws,  indeed,  rc< 
Bpe1^ting  tlie  church  made  a  very  pr^imtnent  fignre  during  the 
first  fifty  years  of  tlic  colonial  legialation.  The  first  law  allow- 
ing toleration  to  Protestant  dissenters  was  in  thp  year  1699,  and 
merely  adopta  that  of  the  statute  of  the  1st  William  and  Hary. 
Subject  to  this,  the  Chnrch  of  fhigland  seems  to  have  maintained 
an  exchisive  supremacy  down  to  the  period  of  the  American 
Revolution.  Marriages,  except  in  special  cases,  were  required 
to  be  celebrated  in  the  parish  church,  and  according  to  the  rn- 
bric  in  the  common-prayer  )>ook.  The  law  of  inheritance  of  the 
parent  coimtry  was  silently  maintained  down  to  the  period  of 
the  American  Revolution;  and  the  distribution  of  intratato  es- 
tatea  was  closely  fashioned  upon  the  same  ^neral  model.  De- 
vises also  were  regulated  by  the  law  of  England ; '  and  no  colonial 
statute  appears  to  bare  been  made  on  that  subject  until  1748, 
when  one  was  enacted  whicb  contains  a  few  deviations  from  it, 
probalily  arising  from  local  circamataoces.*  One  of  the  roost 
remaricable  facts  in  the  juridical  history  of  the  colony  is  its 
steady  attachment  to  entails.  By  an  act  passed  in  1705,  it  was 
provided  that  estates-tail  should  no  longer  be  dockod  by  fines 
or  rooovories,  but  «>nly  by  an  act  of  the  legislature  in  each  par- 
ticular case.  And  though  this  was  afterwards  modifHM],  so  as  to 
allow  entails  to  be  destroyed  in  another  mimner,  wherw  tlw  es- 
tate did  anX  exceed  X30I)  sterling  in  value,*  yet  the  gi^nersl  pul- 
ley continued  down  to  the  American  Revolution.  In  Uiis  reapoct, 
the  teal  of  the  colony  to  secnre  entails  and  perpetuate  inherit- 
ances  in  the  same  family  outstripped  that  of  the  parent  country. 
§51.   At  a  very  early  period  tho  acknowledgment  and  registry 

4an.  to  ask*  >nj  [ks]  only  Uii^  thai  mamimt  l»ad  U  gtvi  Md  lifil,  siiIm  wiUtia 
tluM  mcBtlui  nTlfr  Ux  mnnjaBc*  it  b*  (•ewilid'* 

1  1  nlw apiD  Uin» M^Nla  to HMotng.  Slit.  la.  in,  141.  lUi,  U5^  ISe^  SM^  MS, 
ST7.  »(i  SHauSut.  iS.  M;  S  tloii.  StaL  150,  ITUt  M(V  4U. 

•  5  Hfamn^  8uL  «J4. 

•  S  HniBia^  BW.  no,  SIS :  411m.  flUL  «»!  ■  Bm.  SttL  (II  i  1 'Dick.  Bkdt. 
ConuB.  ifv- 


en.  n.] 


OSIGrN   AND   RETTTLEIIEKT  OF   VIBCIMA. 


27 


of  deeds  and  mort^gf^n  of  roal  estate  were  provided  for,  nnd  the 
non-registry  waa  doemcd  a  badge  of  fraud.'  The  trinl  by  jury, 
althouffb  a  privilege  resuUmg  from  their  genera!  righta,  -was 
guunled  by  8|)ecia)  legislation.  Thflre  waa  also  an  early  declara- 
tion, that  no  tuxM  eould  be  levied  by  the  governor  without  the 
consont  of  the  general  unttembly ;  and  when  raised,  they  were  to 
be  applied  necording  to  the  appointment  of  the  legialatare.  The 
biirgecscft  aUo  during  their  altcndunce  npon  the  assembly  were 
free  from  arrest.  In  respect  to  domratic  trade,  a  general  free- 
dom waa  gitarant«ed  to  nil  the  inhabitantH  to  buy  and  sell  to  the 
greatest  advantage,  and  all  ongnwuing  was  prubibitcd.*  The 
culture  of  tobacco  seems  to  have  been  a  constant  object  of  solici- 
tude; and  il  was  encouraged  by  a  long  suecMsion  of  acts,  suffi- 
ciently evincing  the  public  feeling,  and  the  vuHt  importance  of 
it  to  the  prosjwrity  of  the  colony."  We  leam  from  Sir  William 
Berkeley's  answers  to  the  Lords  Cnmmissi oners,  in  1671,  that 
the  population  of  the  colony  was  at  that  time  about  40,000;  that 
tlic  restrictions  of  the  navigation  act,  cutting  off  all  trade  with 
foreign  countries,  were  very  injurious  to  them,  as  they  were 
obedient  to  the  laws.  And  "thia,"  aays  he,  "is  the  cause  why 
no  small  or  great  vessels  are  built  here;  for  we  are  mostobodlent 
to  all  laws,  whilst  the  New  Knglnnd  men  break  tiirough,  and 
men  trade  to  any  place  that  their  interest  leads  thcui."  This 
language  is  sufficiently  significant  of  the  restlessness  of  New  Eng- 
land under  these  restraints  upon  its  commerce.  But  his  answer 
to  the  question  rMpecting  religious  and  other  instuction  in  the 
colony,  would  in  our  times  create  universal  astonishment.  "I 
thank  God,"  says  he,  "there  are  no  frte  tehwls  nor  prnding; 
and  I  hope  we  shall  not  have  Ihetie  hundred  years;  for  learning 
has  brought  disobedience  and  heresy  and  sects  into  the  world, 
and  printing  has  divulged  them  and  libels  against  the  beat  gov- 
ernment Ood  keep  us  from  both."*  In  1680  s  remarksble 
ehnngc  was  made  in  the  colonial  jurisprudence,  by  taking  all 
judicial  power  from  the  assembly,  and  allowing  an  appeal  from 
the  judgments  of  the  General  Court  to  the  King  in  Council." 

■  1  lIuiniD^  aui.  24S;  3  11m.  Sut.  U  ;  S  Hta.  Stat.  S21. 

■  1  Hmntnc  iUiL  SMi. 

■  8m  1  H«-  8UL  lSS.tai]  lnd«>.  10.  Totacco,  la  th«t*nil  tlMNbwqwatnihiMN; 
BB*n.  Stat.  SI  4. 

•  t  Hen.  8UL  Ml.  51S.  SU.  S17 1  1  Clialm.  Aniub,  SSS ;   S  Hatch.  Colteet.  4H. 

*  Xmk.  Calm.  cb.  A,  p.  1«3 1  1  CUIm.  AnDal*^  MS. 


26 


HISTOBY   OP  THE  COLOKIEB. 


[BOOK  I. 


CHAPTER  HI. 


ORICIX  A!tD  BRTTLiaiiafT  OP  KCW  BKGLANtK 


§  52.  We  may  niiw  iidwrt  in  ft  lirief  manner  to  the  hintoiy  of 
the  Nurtltcni  ur  I'ljmoutli  Company.  That  company  puesesacd 
fcwiT  i\-»o«rcf8  ami  le**  enterprinc  than  the  Soutiiem ;  and  though 
allied  by  meu  of  high  dintinction,  snd  among  others  by  the  pub- 
lic spirit  and  k«at  of  Lord  Chief  Justice  I'upluuo,  itit  first  efforts 
for  colonization  were  feeble  and  diacouraiting.  Captain  John 
Smith,  so  well  kno«-n  in  the  history  of  Vii-jrinia  by  bis  successfat 
adventurcfl  under  tbcir  authority,  loot  a  transient  loistre  to  thvir 
att^'mpta;  and  his  warm  dcscriptioiia  of  the  beauty  and  fertility 
of  the  country  procured  for  it  from  the  excited  imaiiinutJoii  of 
the  Prince,  afterwards  King  Charles  th«  First,  ttw  (Utt«riug 
name  of  Nfte  Ettffland,  a  ituinc  which  effaced  from  it  that  of  Vir- 
ginia, and  which  has  since  become  dear  beyond  expression  to  the 
inhabitants  of  ita  harsh  but  aulubrious  climate^ 

§  58.  While  the  company  was  yet  languishinff,  an  event  oc- 
curred which  gave  a  new  and  anexpected  aspect  to  its  proapeols. 
It  is  well  known  tluit  the  R-lifrious  diMCtuions  coQaoqucnt  upon 
the  Rcfonnalion,  wbilv  Uiey  led  to  a  mort  bold  and  free  spirit  of 
disciuistou,  failed  at  the  aame  time  of  introducing  a  corresponding 
diarily  for  differences  of  religious  opinion.  Kach  aucccssivQ 
Beet  entertained  not  the  slightest  doubt  of  itji  un-n  infallibility  in 
doctrine  and  woiahip,  and  was  eager  to  obtain  proselytes,  and 
denounce  the  nrrors  of  ita  opponents.  If  it  hod  stopped  bcre,  we 
might  have  forgotten,  in  admiration  of  the  einc«ro  jgcal  for  Chris- 
tian troth,  the  desire  of  power,  and  Ibc  pride  of  mind,  which 
lurked  within  the  inner  folds  of  their  devotion.  But,  unfortu- 
nately, the  spirit  of  intolerance  was  abroad,  in  all  ila  stem  and 
unrelenting  severity.  To  tolerate  errors  was  to  sarrifice  Otris- 
tianity  to  mere  temporal  interests.  Tnith.  and  truth  alone,  was 
to  be  followed  at  the  haxard  of  all  coaseqoencea ;  and  religion 

1  ItobHtaM'a  AnnJn,  B.  10:  Kink.  Amm~  fM,  A.  i.  ff.  77.  78  ;  1  Hm.  CuIL 


CO.  III.] 


SBTTLEMEKT  OP  NOT  EXQLAMD. 


S9 


allowed  no  comprtnnisus  between  conBcience  and  worldly  com- 
forts. Uvrtsy  V.-Q8  il«cU  a  sin  of  a  deadly  nature,  and  to  extir- 
lj*tc  it  wu«  a  [irimary  duty  of  all  who  were  believers  in  sincerity 
and  truth.  IVrdccutioti,  thoreforv,  even  when  it  seemed  most 
to  violate  the  fuclinga  of  humanity  and  the  rights  of  private 
judgment,  never  wantvd  apologista  among  those  of  the  purest 
and  most  devuiit  lives.  It  waa  too  often  received  with  acclama* 
tioiia  by  the  vrowd,  and  fouud  an  ample  vindication  from  the 
learned  ajid  the  dogmatists ;  from  the  policy  of  the  civil  majj^s- 
trate,  and  tlic  blind  zkuI  of  tJio  ecvleaiastic.  Each  itcct,  aa  it 
attained  power,  exhiUtvd  the  same  unrelenting  finnnesa  in  put- 
ting down  its  adversaries.'  The  papist  and  the  prelate,  the  Puri- 
tan and  the  Prcsbytcriun,  felt  no  oompum-tiuns  iu  the  destruction 
of  disaentienls  from  their  own  faith.  They  uttered,  indi'^-d,  loud 
complaints  of  the  injustice  of  their  enemies,  when  tlioy  were 
tfaenMclvea  oppriMsod;  but  it  waa  not  from  any  nlihorrence  to 
{wrsccution  itrndf,  but  of  the  infamoiia  errors  of  tlie  pontecutnrs. 
Tliere  ai-e  not  wantinn^  on  the  rccorda  of  the  history  of  these 
tiincM  abundant  proofs,  how  easily  8ccl«,  which  had  liorne  every 
human  calamity  with  unshrinking  fortitude  for  coiiscienoe'sake, 
coutd  tuni  u])on  tJicir  inoffensive,  but,  in  their  judgment,  erring 
neighbors  with  a  like  infliction  of  suffering.*  Even  adversity 
sometimes  fails  of  producing  ita  usiuil  salutary  elTecIa  of  modcra* 
lion  and  compaaaion,  when  a  blind  but  lioiK«t  seal  has  usurped 
dominion  over  the  mind.  If  such  a  picture  of  human  iiiHrmity 
may  justly  add  to  our  humility,  it  may  also  serve  to  admonish 
us  of  the  Christian  duty  of  forbearance.  And  he  who  can  look 
with  an  eye  of  exclusive  censure  on  such  scenes,  must  have  for* 
gotten  how  many  brigtit  examples  they  have  afforded  of  the  lire* 

>  I>r.  Robntaaa  bia  jxtly  obMrrML  that  nM  onljr  iIid  idea  of  lulinlioii,  but  arvn 
(hn  •ofd  tadt  in  th«  Mur  new  afflxcil  lo  H,  ww  lli*n  nnkmrnn."  Sir  JmntB  Uicitin. 
(»)■.  •  nAimwiiwlIr  IC^'ioiu  la  jwllrMl  uid  otMod  pidlOMphjr,  hunnmriceil,  ttat  tki* 
Riint  nil  (the  ■iipiimniua  of  thn  rt|tlil  of  prim*  JndgnMit  fo  iMtt«n  ot  Ml%iDo|  lutd 
mtfml  «  moftnl  »a(ui<l  Irom  tMthn.  w)k^  in  bU  wtrhi«  with  Koni*,  had  Jinwk  ft 
Un  aguiul  ■)]  litiiMnaatliorily,  «n<l  mwwuriawW^dLMtMidtowMiltittd  ttnl  Ih*y  wan 
ntitlnl.  or  nthtt  bovnil,  to  ronii  411J  attw  thair  nwn  ofiMma,  uiil  meat  «f  all,  oa  tlM 
WMl  4njAy  Uitn«(Ulig  nlbjetti.  Difurtatiim  on  tin  Pngrat  tf  Etkieat  PkUotefltlf 
(PkiW  tS33).  |i.  M. 

*  Rolartooa  ■  Amnic^  B.  10 ;  1  B«ikn«p'*  Now  tlRnpdbif*.  ch.  S  i  1  CUm.  Aa- 
Bali,  n-  "*■  >*>•  >^  KO'  1B0>  1S>  •  3  1><»«I^  HiA  Coll.  t2.  , 

■  Tlie  «keb  {wng*  dcMrrw  connMndatiMl  hi  it)  mb«lto  iplrlt.  BobtrUoa'*  ABiria, 
B.IS. 


so 


mSTORY  OF  TUB  COLONIB). 


[book  I. 


liest  Tirtao,  the  most  pcnsuuire  fidelity,  and  the  moat  exalted 
piety. 

§  54.  Among  othcni  who  suffered  pereiMnitionH  from  t)ie  liau^ity 
teal  of  Eliuibcth,  was  a  small  sect  called,  from  the  imiiic  uf  ibeir 
leader,  lirovnists,  to  whom  we  owe  the  foundation  of  the  now 
wideHpread  Boct  of  ConfrregatinnalJHts  or  IndcpendentA.  After 
sufferings  of  an  aggravated  nature,  the/  were  compelled  to  take 
refuge  in  Holland,  under  the  care  of  their  (tastor,  Hr.  John  Rob- 
inson, a  man  distinguiehcd  for  hia  pioty,  his  benovolenee,  and  his 
intrepid  spirit.'  After  remaining  there  aomo  years,  tbey  con- 
cluded to  emigrate  to  America,  in  the  hope  that  they  might  thus 
perpetuate  their  reltp:ious  diBcipltno,  and  prt-servc  the  purity  gf 
SQ  apostolical  church.'  In  conjunction  with  other  friendii  in 
England,  they  embarked  on  the  voyage  with  a  design  of  Mcttlo- 
ment  on  Hudson's  Rircr'in  New  York.  But,  against  their  inlen- 1 
tiun,  they  were  compellL-d  to  land  on  the  shurvs  of  Cape  Cod,  in 
the  depth  of  winter,  and  the  place  of  their  landing  wax  called 
Plymouth,  which  lias  since  become  so  celebrated  as  the  first  per- 
manent  s^-ttlemcnt  in  New  England.*  Not  luivlng  contemplated 
any  pluutation  at  this  plaoe^  tlioyliad  not  taken  the  precaution  to 
obtain  any  charter  from  the  Plymouth  Company.  Tlte  original 
plan  of  their  colony,  however,  is  still  preserved;*  and  it  waa 
founded  upon  the  biutis  of  a  community  of  properly,  at  least  for 
a  given  space  of  time,  a  scheme,  as  the  event  showed,  utterly  in- 
compatible with  the  existence  of  any  lai^  and  flnurishing  col- 
ony. Before  tlieir  landing,  tliey  drew  up  and  signed  a  voluntary 
oompaot  of  goTcrnnient,  forming,  if  not  the  first,  at  least  the 
best  authenticated  case  of  an  original  84>rial  contract  for  Iho  es- 
tablisliRient  of  a  nation  which  is  to  )>e  found  in  the  anoals  of  the 
world.  Philosophers  and  jurist  have  perpetually  rcAorted  to  the 
theory  of  Hueh  a  compact,  by  which  to  measure  tlie  rights  and 
duties  of  )*overnmenta  and  subjecta;  but  for  the  mniit  part  it  has 
been  treated  as  an  effort  of  imagination,  unaufltained  by  the  his- 
tory or  practice  of  nationa,  and  furnishing  little  of  solid  instruc- 
tion for  the  actual  conoems  of  life.     It  was  little  dreamed  o^ 


■  Utlkaap'*  }!*w  IlaBtpliln,  ck.  9  j  I  De«g.  Samin.  3N. 

■  Mortra'*  Htm.  1  la  M. 

*  RobcttaM'*  Amarios  B.  10 ;  UusU.  Amrr,  Col.  di.  >,  pp.  TV.  80  i  Uortoa'*  He*. 
SI  to  31. 

*  1  tlM.  OdO.  87,  86 :  Uorton't  item.  Ai>p.  8T3. 


CH.  in.] 


SOTLKafBHT  OF  KBW   CKOLAKD. 


81 


that  America  Bhoutd  furnish  ui  example  of  it  in  primitire  and 
almost  patriarchal  sitnjilicity. 

§  65.  On  the  11th  of  November,  1620,  tliese  humble  but  fear- 
lens  adventurers,  I>efore  their  landing,  drew  up  and  si^ed  an 
ori^nal  compact,  in  which,  after  adinowled^ng  themselvra  sub- 
jects of  the  cros-n  uf  England,  tbcj-  proceed  to  declare:  "  Having 
undertaken,  for  the  k'*'^  *>'  '^*>*^  "^^  ^^'^  adi-ancement  of  the 
Christian  faith  and  th«  honor  of  our  king  and  country,  a  voyage 
to  plant  the  lirst  oolony  in  the  northern  purta  of  Virginia,  we  do 
by  thcise  praicnt«  solemnly  and  mutually,  in  the  prracncc  of  God 
and  of  one  uooUivr,  covenant  and  combine  ourselvcx  together 
into  a  civil  body  politic,  for  our  better  ordcrinji  and  presorva- 
tion  and  fnrlhiTuncv  of  the  vnia  ufureaiiid.  And  by  virtue  hereof 
do  enact,  cuuHtitiiti*,  and  frame  sucli  just  and  equal  laws,  ordi- 
uanocfl,  acts,  constitutions,  and  ofliocrs  from  tim«  to  time  as  shall 
be  thought  most  meet  and  eonvenit^-nt  for  the  general  good  of  tlio 
eoIoDy;  unto  which  we  promiae  all  due  subniissioQ  and  obedi- 
ence." This  is  the  whole  of  the  compact,  and  it  was  signed  by 
forty-one  persons.'  It  is  in  its  very  essenre  a  pure  demooracy; 
and  in  pursuance  of  it  the  colonists  proceeded  soon  afterwords 
to  organiie  the  colonial  government,  under  the  name  of  the  Col- 
ony of  New  Plymouth,  to  appoint  a  governor  and  other  oOiccrv, 
and  to  enact  laws.  I'ho  governor  was  chosen  annually  by  tbo 
freemen,  and  had  at  first  one  assistant  to  aid  him  in  the  dis- 
diarge  of  his  tnist.'  Four  others  were  soon  afterwards  added, 
and  finally  the  numl>er  was  increased  to  seven.*  'Hie  supreme 
legislative  power  resided  in,  and  was  exercised  by,  the  whole 
body  of  the  male  inhabitants,  every  freeman,  who  was  a  member 
of  the  church,  being  admitted  to  vote  in  all  public  affairs.* 
The  number  of  settlements  having  increased,  and  being  at  a  con- 
siderable distance  from  each  other,  a  house  uf  representatives 
was  cstabliuhed  in  1G89;'  the  mombcra  of  whiclj,  as  well  as  all 
other  ofl'iL-uni,  were  annually  chunen.  Tla'y  adopted  the  common 
law  uf  England  as  the  general  basis  of  their  jurisprudence,  vary- 

>  1  lUx.  CoH.  lie  ;  Uonon't  H««i.  87 ;  VlanL.  Colon,  ch.  S,  p.  80  i  Bobertioa'* 
Avcrica,  B.  10;  S  Hutob.  Hid.  4S9. 

•  PlyiiM-atb  Lam  (1685)  i  1  IUl  Coll.  <0(,  itO. 

•  UotUm'm  Uti».  Ufti  PriMo'*  AiiMali,  SIS  ;  1  llntoh.  HiaL  MS.  «& ;  1  Hm.  CoU. 
4M,  MS.  til.  Ill 

«  BabwtHm'■Aln«rio^B.  l»;S[Ulcfc.UiiUlflTi  1  Uu.  ColL  MB,  411,  419,  ill. 

•  S  BnUh.  HUt.  463. 


88 


HI8T0BY   OP  THE 


[book  t. 


ing  it  however  from  time  to  time  by  miinicip*!  rcgnlfttioiw  better 
adapted  to  their  situation,  or  conforming  more  exactly  to  tlieir 
stem  Dotions  of  the  ultfloluto  authority  and  nnivereal  obligation 
of  tJie  Mosaic  institutiona. ' 

$  ^6.  The  Plymouth  coloniBta  acted,  at  first,  altogether  under 
the  voluntary  compact  and  aasociation  already  mentioned.  Hut 
they  daily  felt  embarrassments  from  the  want  of  some  general 
authority,  derived  directly  or  indirectly  from  the  ci-owu,  which 
ohould  recognize  their  avttlement  and  confirm  their  lefi^slation. 
After  Heveral  inefTectual  attumfitK  madu  for  this  purpoae,  they 
at  length  aucccedL-d  in  obtaining,  in  January,  1629,  a  patent 
frum  the  council  estubliiihed  at  Plymouth,  iu  Euffland,  under  the 
charter  of  King  James  of  It^SO."  This  pot«nt,  bitiidcs  a  grunt  of 
the  territory  upon  the  terms  and  tenure  of  the  original  patent  of 
1620,  includod  an  authority  to  the  pat«nloc  (William  Bradford) 
and  hi»  uiwuciatea,  "to  incorporate  by  some  usual  or  fit  name 
and  titlu  him  or  themsvlvi-s,  or  the  people  (ticro  inhabiting 
under  him  or  them,  and  their  aucocssora,  from  time  to  time,  to 
frame  and  make  urdcn,  unliiutnccs,  and  conalitutioita,  as  well 
(or  the  better  government  of  their  affairs  here,  and  the  receiving 
Of  admitting  any  into  his  or  their  society,  as  also  for  the  better 
gov-ernmcnt  of  his  or  their  people,  or  his  or  their  people  at  sea 
in  going  thither  or  returning  from  Uience ;  and  the  same  to  put 
oreaose  to  be  put  in  execution,  by  such  officers  and  ministers, 
M  he  or  they  shall  authorize  and  depute;  provided,  that  the 
said  laws  and  orders  be  not  repugnant  to  the  laws  of  I^nglond 
or  the  frame  of  government  by  the  said  president  and  council  [erf 
Plymouth  Company]  hereafter  to  bo  establiahed."* 

§  57.  This  patent  or  charter  scema  never  to  have  been  con- 
firmed by  the  crown;*  and  the  cotonista  were  never,  by  any  act 
of  the  crown,  created  a  body  politic  and  corporate  with  any  I&- 
gislativc  power*.  They,  therefore,  remainod  ia  lejjal  contempla- 
tion a  mere  voluntary  association,  exercising  the  highest  powers 

■  RobcrtMu'*  AMuk*.  B.  10 :  3  llntdi.  Hut  t6%  443,  tCt ;  Bulibanl'*  HiU.  dk  VK 
p.  9% ;    iCIulMM'i  AdmIi,  BS. 

■  SHMck.  Hlu.««4,  4T8;inu.ODlLS*S,4H**>;lClttlnKn'«AiiiHlK«T,Wi 
1  Rolin«i'*  Aniwis  SOI. 

•  t  ItM.  OAL  39«.  (04. 

*  ChalnHin  Myt  (1  Clialm.  AdiibU  >7)  tlut  "Uiit  pfttcst  niMt  oenSfuad  bjrtk* 
H««a,  IfaoDfli  Uir  eDtitnr;  fau  twvn  ■Otmal  bjr  tb*  eohmkl  Uttoriuu."  8n  alto 
Hurii.  HiU.  Uoloa.  ch.  S,  pp.  83,  8S. 


CB.  m.] 


PLTMODTH  COLOMT  LAWS. 


88 


uid  prcrog«UvM  of  sovereignty,  and  yielding  obedieiUK  to  tbe 
laws  nnd  miigistrates  citosen  by  themaelvee.  * 

§  66.  The  charter  of  li>2y  furnishod  them,  however,  with  the 
color  of  delegated  sorercigiity,  of  which  they  did  not  fail  to  nvail 
themselves.  They  asKiiiiied  under  it  the  exoi-cise  of  the  mo«t 
plenary  executive,  legislative,  and  judicial  powers,  witli  hut  a  mo- 
mentary scrD|)le  aa  to  their  right  to  inflict  ca|)ital  punish menta'  (a) 
They  were  not  disturbed  in  the  free  exercise  of  these  powers, 
either  through  the  ignorance  or  the  connivajice  of  the  crown, 
until  after  the  restoration  of  CharK>s  tJie  Second.  Their  anthor- 
ity  under  their  charter  waa  then  qucationed ;  and  several  unsuc- 
cessful attvmpta  were  made  to  procure  a  confinnatiun  from  Iho 
crown.  They  continued  to  elin^  to  it,,  imtil,  in  the  general  ship- 
wreck of  cliarU-r8  in  lt>84,  theirs  was  ovt^rtumcd.  An  arbitrary 
govemnient  was  then  established  over  them  in  common  with  tho 
other  New  England  colonics;  and  they  n-erc  Anally  incurjKiratcd 
into  a  province  with  Maasachtnctts,  under  the  charter  granted 
to  the  latter  by  William  and  Mary  in  1G91. 

§  ii'X  It  may  not  lie  without  nae  to  notice  a  few  of  the  laws 
which  fonned  what  may  properly  bo  doomed  the  fundamentals  of 
their  jurisprudence;.  After  providli^  for  the  manner  of  cliooa* 
ing  their  gfivemor  and  legislature,  as  above  stated,  their  first 
attention  seems  to  have  been  directed  to  the  establishment  of 
"the  free  liberties  of  the  free-bom  people  of  England."  It  waa 
therefore  declared,*  almost  in  the  language  of  Magna  Charta, 
that  justice  should  l)e  impartially  administered  unto  all,  not 
sold,  or  denied ;  that  no  person  should  suffer  "  in  respect  to  life, 
limli,  liberty,  good  name,  or  estate,  but  by  virtue  or  equity  of 
some  express  law  of  tlie  General  Court,  or  the  good  and  equita- 
ble lawn  of  mir  nation  suitable  for  ua,  in  matters  which  are  of  a 
civil  nature  (as  by  the  court  here  hath  been  accustomed),  wherein 
WD  have  no  particular  law  of  our  own  i"  and  none  should  suffer 
without  Iwing  brought  to  answer  by  due  course  and  process  of 
law;  that  in  criminal  and  civil  cases  there  should  bo  a  trial  by 

*  llunh.  Ilitl.  Colon,  fk.  S,  {X  U ;  I  Clwlin.  Aniuli,  t7, 8S.  01. 
■  :  tlaub.  HIiL  4M.  W5,  447  ;  1  Chklni.  Anittli,  U. 

*  S  Hatdi.  Ititt.  47*.  180 ;  I  Chdui.  AnnaU,  W.  M. 

*  ]b  KS6.    Sm  1  Hu.  ColL  tOI.  «0<S  ;   Id.  ITS  ;  nymauUi  Colouj  L*wi  («dlt. 
ia«)i  inu.Ccd.  111,111.419. 


V0I_  1.  —  8 


(«)  UltKf.  UiM.  of  Xc«  Ed^iI.  L  Ml 


u 


HISTORY  OP  THK  OOLONIKS. 


[book  I. 


jurj  at  all  events  upon  a  final  trial  on  appeal,  with  the  right  to 
chalk'ngv  for  just  caune ;  and  iu  capital  cases  a  peramptorjr  right 
to  chullciigv  twontj  jurors  aa  iu  &igland ;  that  uo  |>arty  should 
he  cast  or  condemned,  unless  upon  the  testimony  of  two  suffi- 
cient vitncsflcs,  or  other  sufTiciL-ut  cvidracu  or  circumstances, 
unless  otlicrwinc  sjiccially  provided  hjr  law;  that  nil  persona  of 
the  age  of  twciitj'-onc  years,  and  of  sotuid  mcmorv,  should  have 
power  to  make  wills  and  other  lawful  alienations  of  their  C8tnt«, 
whether  they  vere  condemned  or  excommunicated,  or  oth«r ;  cx> 
ccpl  that  in  treason  tltcir  personal  cstaUt  sliould  be  forfeited,  but 
their  real  estate  was  still  to  be  nt  their  disposal.  All  processes 
were  directed  to  be  in  the  king's  nniue.'  All  trials  in  respect 
to  land  were  to  be  in  tlie  county  where  it  lay;  and  all  ftonional 
actions  where  one  of  the  particfl  lived;  and  lands  and  t^^ooda  were 
liable  to  attachment  to  answer  the  judgment  rendered  in  any 
action.  All  lands  wore  to  descend  according  to  the  free  tenure 
of  lands  of  Kast  Greenwich,  in  tho  county  of  Kent;  and  all  en- 
tailed lands  actwrdiug  to  the  law  of  England.  All  the  sons  were 
to  inherit  equally,  except  the  eldest,  who  was  to  have  a  double 
share.  If  there  were  no  sons,  all  tJic  daughters  were  to  inherit 
alike.  Brothers  of  the  whole  blood  were  to  inherit;  and  if  none, 
then  sisters  of  the  whole  blood.  All  couveyaocM  of  land  were 
to  bo  by  deed  only,  acknowledged  before  some  magistrate,  and 
recorded  in  the  public  reoonls.  Among  capital  offences  wcrt 
enumerated,  without  any  discrimination,  idolatry,  blasphemy^ 
treason,  murder,  witchcraft,  bestiality,  sodomy,  false  witness, 
man-stealing,  cursing  or  smiting  father  or  mother,  rape,  wilful 
burning  of  bouses  and  ships,  and  piracy;  white  certain  other 
ofTences  of  a  nature  quite  as  immoral  and  injurious  to  society, 
received  a  far  more  moderate  punishment.  Undoubtedly  a  rev- 
erential re^rd  for  the  Scriptures  placed  the  crimes  of  idolatry, 
blasphemy,  and  false  witness,  and  cursing  and  smiling  father 
and  mother,  among  the  capital  offcnova.  AaA,  an  might  well  be 
presumed  from  the  religions  sentiments  of  the  people,  ample  pro- 
tection was  given  to  the  church;  and  the  maintenance  of  a 
public  ortliodox  ministry  and  of  public  schools  was  carefully 
provided  for.* 

>  I  llu.  Coll.  473 ;  nrnio«th  Colonr  !.«««  (l«U\.  p.  IS. 

*  UoM  MBplc  JRifNinMiaa  apoa  *II  IhoB  aubjocu  will  bn  titrtilihvd  bf  wi 


CH.  m.]  FLTHODTH  OOLONT  UWB.  86 

§  60.  Ccnnpared  vitli  the  legislation  of  some  of  the  colonies 
during  an  equal  period,  the  lavs  of  the  Plymoutli  Colony  will  be 
found  few  and  brief.  This  resulted  in  some  measure  from  the 
narrow  limits  of  the  population  and  business  of  the  colon; ;  but 
in  a  greater  measure  from  their  reliance  in  their  simple  proceed- 
ings upon  the  general  principles  of  the  common  law. 


86 


BISTOSY  OP  THE  COLONlCa. 


[BOOKL 


CHAPTER  IV. 


HiSMCiiusFrrs. 


§  61.    About  the  period  when  the  Pljinonth  colonist* 
pleted  their  voyage  {lli20),  James  iho  First,  with  a  view  to  pr 
mote  more  effectually  the  interests  of  the  second  or  northern 
eompany,  grant<?d '  to  tJie  Duke  of  Lenox  and  others  of  tlie  com- 
pany  a  new  charter,  by  which  ita  territories  were  extended  in 
breadth  from  the  40th  to  the  48th  degree  of  north  latitude ;  and 
in  length  by  all  the  breadth  aforcaaid  throughout  the  mainland 
from  sea  to  aca,  excluding,  however,  alt  poMseMion  of  any  other' 
ChriBtiun  prince,  and  all  lands  within  the  bounds  of  the  sonthera 
colony.'    To  the  territory  thus  bounded  he  aflixed  the  name  of 
New  England,  and  to  the  corporation  itself  so  created  the  namo 
of  "The  Council  catablisbed  at  Plymouth  in  the  county  of  Devon, 
for  the  planting,  ruling,  ordering,  and  governing  of  New  Eng- 
land in  America.'*'    The  charter  contains  the  names  of  the  per- 
sons who  were  to  constitute  the  first  council,  with  power  to  fill 
vacancies  and  keep  up  a  perpetual  succcssttm  of  counaollors  to 
the  numlicr  of  forty.     The  power  to  purchase,  hold,  and  sell 
lands,  and  other  usual  powers  of  corporations,  arc  tlion  conferred 
on  them,  and  i«pecial  authority  to  make  laws  and  ordinances  to 
regulate  the  admission  and  trade  of  all  persons  with  the  planta-i 
tjon ;  to  dispone  of  tlieir  lands ;  to  appoint  and  remove  govertionl 
and  other  ofTicers  of  the  plantation;  to  establisli  oil  manner  of 
orders,  laws  and  directions,  inatruotions,  forms  and  cercinonica, 
of  government  and  magistracy,  ao  that  the  same  be  not  contrary' 
to  the  laws  and  statutes  of  England ;  to  correct,  pimish,  pardon, 
govern,  and  ruto  all  inliabitants  of  the  colony  by  such  laws  and, 
ordinances,  and  in  defect  thereof,  In  cases  of  necessity,  accord- 
ing to  the  good  discretions  of  their  governors  and  officers  respec- 
tively, aa  well  in  cases  capital  and  Criminal  as  civil,  both  marine 
and  others,  so  always  that  the  same  ordinances  and  procevdinga 


1  Nor.  I,  leSO :  1  Doag.  Siunm.  144,  *c 


<  1  nu.  CtdL  103,  IDS.  *« 


■  I  Bu.  CoU.  M,  103,  IM.  110,  111. 


CB.  IT.] 


HAS^tACUUSKm. 


87 


be,  tui  near  as  conveniently  may  be,  agreeable  to  the  lawa,  stftt- 
utes,  goveroment,  and  policy  of  England ;  and  Unally  to  regulate 
trade  and  traffic  to  and  from  the  colony,  prohibiting  tlio  aame  to 
all  persons  not  liccowxi  by  the  corpor*tion. *  Tlic  charter  fur- 
ther containa  some  extraordinary  powers  in  cases  ol  rebelliun, 
mutiny,  miacoaduet,  illicit  trade,  and  hostile  invasions,  which 
it  ifl  not  necesaary  to  partictilarir«.  The  charter  also  doclarra 
that  all  the  territory  shall  be  holden  of  the  cmwn,  as  of  the  royal 
manor  of  East  (Ireenwich,  in  Kent  County,  in  free  and  common 
aocajnt,  and  not  m  capiU,  nor  by  knight  semce;*  and  that  all 
Bub|cet8,  inhahitanta  of  the  plantation,  and  their  cliildren  and 
poatcrity  born  within  the  limits  thereof,  shall  have  and  enjoy  all 
liberties  and  franchises  and  iinmmiities  of  free  denizens  and 
natural  aubjijcta  witJiin  any  other  of  the  dominions  of  the  crown, 
to  all  iatcnta  and  purposes  as  if  Uicy  had  been  abiding  and  bora 
within  the  kingdom  of  England,  or  any  other  dominions  of  the 
crown.*  T]]e  charter  also  authorized  the  council  to  transport  to 
the  plantation  any  subjects,  or  strangers  who  were  willing  to  bc- 
eomo  subjects  and  live  under  the  king's  allegiance.  Kut  it  prtn 
hibiled  papists  to  be  transported,  by  requiring  all  persons  going 
there  to  take  the  oath  of  supremacy,  and  authorising  the  presi- 
dent of  the  council  to  administer  the  oath.* 

§  62.  Home  of  the  powers  granted  by  thia  charter  were  alarm- 
ing to  many  persona,  and  eepccially  those  which  granted  a 
monopoly  of  trade.*  The  efforts  to  aettle  a  colony  within  the 
territory  were  again  renewed,  and  again  were  unsuccessful.* 
The  spirit  of  rcVigion,  however,  aoon  effected  what  the  spirit  of 
commerce  had  failed  to  accomplisfL  The  Furitiins,  persecut^^d 
at  home,  and  groaning  under  tlic  weight  of  spiritual  bondage, 
cast  a  longinL'-  eye  towards  .America  as  an  ultimate  retreat  for 
themselvea  and  their  children.  They  were  encouraged  by  the 
infomiatioii  that  the  colonists  at  Plymouth  were  allowed  to  wor- 
ship Iheir  Creator  according  to  the  dictates  of  their  coiuicicncea, 
wjtliout- molestation.  They  o])ened  a  negotiation,  through  the 
instrumentality  of  a  Air.  Whitc^  a  distinguished  iiou-c(Hi>foniutig 


>  I  Hu.  OolL  toa.  110,  us,  11*,  Ul. 
■  lUd.  111. 

*  llrid.  117. 

*  Hanh.  ColoD.  cli.  S,  p.  S3  ;  1  Qaba. 

*  Bobtftsmi'i  Aia*ri««.  B.  1»  i  1  CUlm. 


» Ibid.  iir. 

81,88. 
Ml 


SB  HISTORY  or  THE  COLOMBS.  [BOOK  I. 

mtniator,   with  the   council  established   tt   Pljmocth;   and   ia 

March,  1627,  procured  from  th«m  a  grant,  to  Sir  Henry  Rum- 

L  veil  and  otbera,  nf   alt  tlml  {mrt  of  Xew  Entrlond    Ifin^  throe 

F  iniles  Boutb  of  Charlra  River  and  three  miles  nurth  of  Merrimack 

Rn'er,  extending  from  the  Atlantle  to  the  South  Sea.' 

§  fiS.    0(her  pernons  were  8oon  inducted  to  unit*  with  them,  if 
a  charter  could  l>e  procured  from  the  croHti  which  should  secure 
to  the  adventurera  tJic  usual  powers  of  govenunent     Application 
I  was  made  for  this  purpose  to  King  Charles,  who  accordingly,  in 
'March,  XGi"^  tinted  to  the  grantees  and  thoir  asAociates  the 
most  ample  powers  of  govcmmeat.     Tlte  charter  conlimit-d   to 
tlirm  the  torritury  already  granted  bv  the  council  est&blishod  at 
Plymouth,  to  be  holden  of  tlie  crown,  as  of  the  rojat  manor  of  East 
Gn-cnwich,  "  in  free  and  commoD  socage,  and  not  in  eapiie,  nor 
|b.v  knight's  service,  yielding  to  the  crown  one  lifth  port  of  all  oi« 
of  (told  and  silver,"  *c,  with  the  exoeption,  however,  of  any  part 
of  the  territory  actually  posnessed  or  inhabited  by  any  other  Chris- 
tian prince  or  state,  or  of  any  part  of  it  within  the  boundn  of  the 
g<>nlli<-nt  colony  (of  Viriiinia)  granted  by  King  James,     it  aUto 
ort'iilvd  Uio  BBSociatfs  a  body  politic  by  the  name  of  "The  Gov- 
omor  and  Coin|mny  of  the  Massachusetts  Bay  in  Xew  England," 
with  Ih"  nutml  powpra  of  corporations.     It  provided  that  the  gov- 
eniMii'nt  should   be  administered  by  a  gn\'emor,  a  dcputy-guv- 
ornor,  and  eighteen  assistants,  from  time  to  time  elected  out  of 
ihn  rrrrnicn  nf  the  company,  which  ofRcers  should  hare  the  caro 
of  the  grneral  businesa  and  alfain  of  the  lands  and  plantations, 
and  the  tuivi-mment  of  the  people  there;  and  it  appointed  the 
Wrat  govi«riior,  deputy-governor,  and  assistants  by  name.     It  fur- 
thiT  providi-d  that  a  court  or  quorum  for  the  transaction  of  buai- 
liiiiH  alhiuld  eonxist  of  the  governor,  or  the  deputy-governor,  and 
§f\\n\  or  nion<  assintants,  which  should  assemble  as  often  as  once 
H  tiitiulh  for  that  purpoiie.  and  also  that  four  great  general  asscm- 
MU'*  III   i|it<  iMiuipMuy  should   bu  held  in  erftry  year.     In  these 
|lvit(  ami  Huuiu'itl  tiNai'mbliM  (which  were  oompoaed  of  the  gov- 
.<      .1       >.    iiMUliitila,  and  froomcn  present),  freemen  were  to 
(.  mti  III  Oiti  ivuiipimy,  ofliccre  were  to  be  oli-cted,  and 

Una  wd  (trdluuiiiHia  fur  Iho  k<)<kI  »id  welfare  of  the  colony  made ; 

i  "VhaM  u«  uiik  llw  Jm^i-II**  tanU  of  ib»  Kntnl.  but  ■  >uiiBin«Qt  of  Um  MbclBBca 
.iT>l  III  111*  uhwtar  la  lliitehUMin'*  CnltBcdon,  p.  1,  Ac  ud  in 
...  Uo*  i>r  llMiriiairtK  jtiaM  tn  ItlL 


CH.  IV.] 


JIA8SACHUSBTTS, 


69 


"bo  as  Buch  lawn  and  ordinances  l>o  not  contrarj  or  repugnant  to 
the  Uws  and  statutes  of  tliiH  our  rcului  of  Enelait^- "  At  one  of 
tJteso  great  and  Rvncral  aftsi->mbllc(i  hi-ld  in  En^tor  Term,  the  gov- 
ernor, dvputy,  and  (utaiatants,  and  oth«r  utTioora  wi-rc  to  be  annn- 
ally  chosen  bj-  the  cotnpaiiy  prcMUt  The  com[»any  were  further 
nuthoriiM.'d  to  Iransport  onjr  subjc-ctD  or  strniigcm  willing  to  be- 
come subjvvtH  uf  the  crown  to  tlic  colony,  and  to  carry  on  trade  to 
and  from  it,  without  custom  or  subaldy  for  hcfcd  yeani,  and  wore 
to  be  free  of  all  taxation  of  imports  or  exports  to  and  from  the 
Enjrlish  dominion  for  the  spnoc  of  twenty-oiip  years,  with  the 
exception  of  a  five  ]>er  c«iit  duty.  The  charter  further  provid«d 
that  all  subjects  of  the  crown  who  should  lieoome  inhabitants, 
and  their  children  )>oni  there,  or  on  the  seas  Roing  or  returnintr, 
sh'juld  enjoy  nil  liUtrties  rind  immunities  of  free  and  nattirni 
HulijectA,  08  if  they  and  every  of  thcin  were  born  within  the  realm 
of  Kngland.  Full  Iff^olnlive  authority  was  also  fpren,  subject 
to  the  reatrirtiitn  of  not  being  contrary  to  the  laws  of  England, 
as  also  for  the  imposition  of  fines  and  mulcts  "according  to  th« 
eourse  of  other  enrporatinns  in  England."'  Ma^hother  prorf* 
sions  were  added,  Bimilar  in  substance  to  thoflWound  id  the 
antecedent  colonial  charters  of  the  crown. 

§  M.  Such  were  the  original  limits  of  the  colony  of  Maaaachu- 
sett*  Buy,  and  such  were  the  jtriu-ers  and  [irivilem-s  conferred  on 
It.  It  is  olMcrrable  that  the  whole  structure  of  the  charter  pre- 
sup]>08c«  the  residence  of  the  rompany  in  England,  and  the  tniis- 
action  of  all  its  business  there.  The  experience  of  tlio  [mst  had 
not  sufficiently  instructed  the  adventurers  that  scltlements  in 
America  could  not  be  well  governed  by  corpomtiuns  resident 
abroad;^  or  if  any  of  them  had  arrived  at  such  a  conclusion, 
there  were  many  reasons  for  presuming  tJiat  the  crown  would  b« 
jealons  of  granting  jxiwers  of  so  large  a  natnro,  which  were  to  bo 
exercised  at  such  a  distnnoo  as  would  render  conti-ol  or  responsi- 
Inlily  over  them  wholly  Tlsionary.  They  were  content,  there- 
fore, to  got  what  they  could,  hoping  that  the  future  might 
furnish  more  ample  opport4initie«  for  siiccest) ;  that  their  usurpa- 
tions of  authority  vould  not  lie  closely  watched;  or  that  tliere 
might  be  a  silent  indulgence,  until  the  policy  of  the  crowu  might 
(eel  it  ft  duty  to  yield,  what  it  waa  now  useless  to  contend  for, 

*  llnub.  Coll.  pp.  l-ia  ;  1  Hat.  Coll.  SSB ;  1  Cliilni.  Annalt,  1ST. 
■  I  CUm.  AaaiK  »  :  RoImUmii'*  nUt.  Anurioo.  B.  10. 


88 


nreron'  op  the  ooi/nam. 


[book  [. 


in)nist«r,  with  the  council  established  at  Plymouth;  and  in 
March,  1627,  procured  from  tJiein  a  frrant,  to  Sir  Hoiiry  Roaie- 
well  and  others,  of  all  that  part  of  New  England  lyi»i;  three 
miles  soath  of  Charlen  River  and  thn>«  miles  north  of  Merrimack 
River,  extending  fi-om  the  Atlantic  to  the  South  Sea.' 

g  68.  Other  persona  were  soon  induced  to  unite  witJi  them,  if 
a  charter  could  l>e  procured  from  the  crown  which  ^hoiitd  secure 
to  the  adventurers  the  uaual  powers  of  government  Application 
vrm  made  for  this  purpose  to  King  Charlm,  who  accordingly,  ia 
March,  1628,  grantod  to  the  grantees  and  their  as<iociate6  the 
moat  ample  powers  of  government,  T)m  charter  conlimied  to 
them  the  territory  already  granted  by  the  council  established  at 
Plymouth,  to  be  holdcn  of  the  crown,  an  of  (he  royal  manor  of  East 
Greenwich,  "in  free  and  common  socage,  and  not  in  capite,  nor 
by  knigfat*8  serried,  yielding  to  the  crown  one  fifth  part  of  all  ore 
of  gold  and  silver,"  Vfec,  with  the  exception,  however,  of  any  part 
of  the  territory  actually  [(Oaaesacd  or  inhabited  by  any  other  Cbris- 
f  ian  prince  or  state,  or  of  any  part  of  It  within  the  hounds  of  the 
southern  colony  {of  Virginia)  granted  by  King  James.  It  also 
created  the  associates  a  body  |>olitic  by  the  name  of  "Tlic  Got- 
emor  and  Company  of  the  MsMachusctts  Bar  in  New  England," 
with  the  usual  powers  of  corporations.  It  provided  that  the  gov- 
ernment should  be  administered  by  a  gorcmor,  a  doputy-gov- 
emor,  and  eighteen  assistants,  from  time  to  time  elected  out  of 
tlie  freemen  of  the  company,  which  offiecrs  should  hare  the  care 
of  the  general  business  and  affairs  of  the  lands  and  plantations, 
and  the  government  of  the  people  there;  and  it  appointed  the 
first  governor,  deputy-governor,  and  asaiatanta  by  name.  It  fur- 
ther provided  that  a  court  or  quorum  for  the  transaction  of  buai- 
ul-ss  should  consist  of  the  governor,  or  the  deputy-govcmor,  and 
aeven  or  more  assistants,  which  should  assemble  aa  often  as  cmoo 
a  month  for  that  )>ur|X)se,  and  also  that  four  great  general  assem- 
blies of  the  company  should  l>e  held  in  every  year.  In  th«M 
great  and  general  aasemblies  (which  were  composed  of  the  gor< 
ernor,  deputy,  aasistants,  and  freemen  prwtent),  freemen  were  to 
be  admitted  free  of  the  company,  officera  were  to  l>e  elected,  and 
laws  and  ordinances  for  the  good  and  welfare  of  the  colony  made; 

1  Thew  uc  not  IliB  lUuriptiva  vonti  of  tb*  gnn\,  but  %  *UUn»«at  at  th«  niMuta* 
of  it.  TW  gnnt  li  rtdtol  in  Uin  charter  In  Hntdiinaon'i  CnUMtion,  p.  1,  An.  and  ia 
^a  Oolonul  aiul  PiwrtDO*  U<n  oT  TJMMiihwwIlii.  printed  tn  ISlt. 


CH.  IT.] 


HASHACHUSrTTS. 


89 


**M  M  «nch  lawR  and  ordinanceB  be  not  contrary  or  repugnant  to 
the  lawit  and  stattiten  of  thia  our  realm  of  England. "  At  one  of 
these  great  and  general  assemblies  held  in  Easter  Term,  the  gor* 
emor,  deputv,  and  assistants,  and  other  olTiwrs  wore  to  be  annu- 
ally chosen  by  the  company  preafnt  Tbe  company  were  further 
authorized  to  transport  any  subjects  or  strsugvra  willing  to  be- 
come subjects  of  the  crou-n  to  the  colony,  and  to  carry  on  trade  to 
a]]d  from  it,  without  custom  or  subsidy  for  aeven  years,  and  were 
to  be  free  of  all  tAxation  of  imports  or  exports  to  and  from  the 
English  dominion  for  the  space  of  twenty-one  }'ears,  with  the 
exception  of  a  five  per  cent  duty.  The  charter  further  provided 
that  all  subjects  of  the  crown  who  should  Ijecomc  inhabitants, 
and  tlicir  children  born  then-,  or  on  the  seas  goinir  or  returning, 
should  enjoy  all  liberties  and  immunities  of  free  and  natural 
siiljjccts,  as  if  they  and  cx-cry  of  tlicin  were  born  within  the  realm 
of  England.  Full  lo^elative  authority  was  also  given,  subject 
to  the  restriction  of  not  being  contrary  to  the  laws  of  England, 
as  also  for  the  tmjwsitton  of  fines  and  mulcts  "according  to  the 
course  of  other  corpomtions  In  P^nj^land."  '  Ha^^Qther  provi. 
sions  were  added,  similar  in  auljstance  to  thofl^oand  in  the 
antecedent  colonial  charters  of  the  crown. 

§  64.  Such  were  the  original  limits  of  the  colony  of  Massachu- 
setts Bay,  and  such  were  the  powers  and  privileges  conferred  on 
it.  It  is  otisen'nhle  that  the  whole  structure  of  the  charter  prc- 
Mippoees  the  residence  of  the  company  in  l-^gland,  aJid  tlio  trans- 
action of  all  its  hu!iine»fl  there.  The  experience  of  tJio  [lOflt  had 
not  sufTiciently  instructed  the  adrentiirers  that  settlements  in 
America  conld  not  l>o  well  governed  by  corporations  rc«idont 
abroad;'  or  if  any  of  them  had  arrived  at  such  a  conclusion, 
there  were  many  reasons  for  presuming  tliat  the  crown  would  bo 
jealous  of  granting  powers  of  so  lai^  a  nature,  which  were  to  lie 
exercised  at  such  «  distance  as  would  render  control  or  rvsponst- 
hility  over  them  wholly  viBionary,  They  were  content,  there- 
fore^ to  get  what  they  could,  hoping  that  the  fntiire  might 
jrnish  more  ample  nppnrtimiUes  forsuceeiut;  that  their  usurpa- 
Sons  of  authority  would  not  be  cloaely  watched;  or  tliat  there 
might  be  a  silent  indulgence,  until  the  policy  of  the  crown  might 
feel  it  a  duty  to  yield,  what  it  waa  now  uaclcas  to  contend  for, 

t  HBteh.  Con.  pp^  1-23 :  t  Hw.  CoU.  Sae ;  1  Ctulm.  Anuli,  nj. 
*  1  Chilm.  AumK  81 ;  Bob«rtMii'«  HM.  AMrin,  B.  10. 


40 


BISTORT  OP  TUE  COLOSICa. 


[book  I. 


u  a  dictate  of  wiadom  and  ju«tfc«.'  Tlic  charter  did  not  in* 
olude  any  cluuw  providing  for  Clic  froc  exercise  uf  relii^ion  or  tbo 
rightd  of  conac-iunoo  (iw  ha«  been  often  erryneougly  xupposcd).' 
It  gave  authoritj-  to  the  governor  and  other  ofliccra  to  admiiuBter 
the  oath  of  8u|>remacy,  thereby  probably  intending  to  diaoouraf^ 
tho  settlement  of  papists  in  the  colony.'  But  there  is  ttutliinn;  in 
it  which  exhibits  on  the  part  of  the  monarch  any  diii|MMitiou  to 
relax  In  favor  uf  the  Puritaus  the  severe  maxinu  of  confonoity 
Ro  characteriatic  of  his  reign.*  The  hrat  emigrants,  however, 
paid  no  attention  to  this  circuiuHtancc;  and  the  very  first  church 
planted  by  tliera  was  independent  in  all  it«  forms,  and  repu* 
diated  every  connection  with  Gpiauopacy  or  a  liturgy.^ 

§  65.  Hilt  a  bolder  atep  was  soon  afterwards  taken  by  the  com* 
pany  ilflolf.  It  was  asocrtained  that  little  suecijsa  would  attend 
the  plantation,  ao  long  an  its  uEfairs  wure  under  the  control  of  a 
diHtant  government,  knowing  little  of  its  wants,  and  iusonaible 
to  its  diDieultios.*  Hany  pvrsous,  indeed,  {H«iw.uuH-d  uf  furtuno 
and  character,  warmed  with  religioiw  zeal,  or  suffering  under 
religious  inHferanco,  wore  ready  to  embark  in  the  enterprise,  if 
the  corporatnR  itliuutd  bo  removed,  bo  that  the  iwwcrs  of  (govern- 
mont  might  be  exercised  by  Uie  actual  settlers.'  The  company 
had  already  become  alarmed  at  the  extent  of  their  own  expendi- 
tiin.-it,  and  there  were  but  faint  hopes  of  any  apcedy  reimhurae- 
meat  They  entertained  some  doubts  erf  the  logdity  of  the 
counw  of  transferring  the  charter.  But  at  length  it  wan  deter- 
mined, in  August,  Itl^y,  ■'  by  the  general  eonaent  of  the  company, 
that  the  government  and  patent  should  be  settled  in  Now  Bng- 
land."*  This  resolution  infused  new  life  into  the  association; 
and  the  next  election  of  officers  was  made  from  among  those  pro- 
prietors who  had  signified  an  intention  to  remove  to  America. 
The  government  and  oliarter  were  accordingly  removed ;  and 
henceforth  tbe  wholo  management  of  all  the  affairs  of  the  colony 


)  Bobcrtoon'*  Amtiica,  B.  10 ;  1  Cbdm.  JUtemb,  Ul. 

■  1  CUoMn'*  Aimli,  UI ;  Robtdaea'i  Ancrica,  B.  10,  tad  mM. 

■  Rat  Kfl  1  GnluBK^  lUrt.  eh.  1,  p.  24&,  vA*. 

•  ItobfRMoi'i  Aueriat,  Bcek  10,  and  not* ;  1  CUIa,  Aflittk,  111. 

•  S«b«rt«>Q-t  Amnrick,  B.  10 ;  UaU*.  CoU.  Wl ;  1  duln.  AiuiU^  14S,  Ul,  149. 

*  1  Chalnun'*  AmmIw  94,  9i. 

'  I  BsUb.  Htst.  12,  tS ;  I  ClulnMn'i  Ans.  IBO.  IM. 

*  1  tlutch.  BiaU  18 ;  llaUh.  Coll.  SS.  2«  i  Robortnn*!  Anwrica.  R.  10 ;  Uu^ 
CMmlu, elk  S,  p.  S>!  1  UolnuM'tAiiMK  lQ7i  1  ClMltii.  Auiub.  UO. 


41 


^ 
N 


^ 


vaa  confided  to  per8(Hia  and  ma^stratea  reaident  within  it«  own 
boaom.  The  fate  of  the  colony  was  thua  decided ;  and  it  grew 
with  a  papidity  and  Htrcngth  tJiat  soon  gave  it  a  great  ascendency 
among  titv  New  Englaud  settlcmi-nta,  uud  awakened  the  jealousy, 
diatnut,  and  vigilance  of  tlio  parent  cuuntr}*. 

§  66.  It  has  bueu  juBtly  rfinarkcd,  that  this  tmuHactiou  standa 
slono  in  the  liixtory  uf  English  eoloniialion. '  Thu  puwer  of  the 
oorpuntion  to  uiako  tJio  tronufcr  has  been  acrioiuly  doubtvd,  and 
i-vcn  denied."  But  tlic  boldness  of  the  atep  ia  not.  moi-c  ittrikiug 
than  the  silent  acquiescence  of  the  king  in  permitting  it  to  take 
place.  Tlic  proceedings  of  the  royal  authority  a  few  years  after 
sufficiently  prove  that  the  royal  aoquiesoonce  was  not  intended  as 
any  adinisaion  of  right  'l*he  snbuqiient  atnigglof)  between  the 
crown  and  the  colony,  down  to  the  overthrow  of  (he  charter,  under 
the  famous  que  warranto  proceedings,  in  16&4,  manifest  a  diaposi- 
tioQ  on  the  p»i-t  (if  tho  coloniHtii  to  yield  nothing  which  cMiId  be 
retained ;  and,  on  tlie  part  of  the  crown,  to  force  them  into  abso* 
late  subjection. 

$  67.  The  government  of  the  colony,  tmmodiataly  after  the  re- 
moval of  tho  charter,  was  changud  in  matiy  imjHirtant  fejitures; 
but  its  fnndamental  grants  of  territory,  powers,  and  privileges 
were  eagerly  maintained  in  their  original  validity.*  It  is  tnie, 
as  Dr.  Robertson  lias  oliHcrved,*  that,  as  soon  as  tito  Massachn- 
setts  emigranta  had  landed  (m  these  shores,  they  considered  them- 
selves, for  many  purposes,  as  a  voluntary  UBSociation,  possessing 
the  natural  rights  of  men  to  adopt  that  mude  of  government 
which  was  most  agreeable  to  tbomMlroe,  and  to  cnaet  such  laws 
as  wore  condncive  to  their  own  welfare  Tlioy  did  not,  Indeed, 
surrender  up  their  cliartcr,  or  ccuac  to  recognize  its  obligatory 
force.*  Bnt  they  extended  their  acb*  far  beyond  its  expression 
u(  powers;  and,  while  they  boldly  chiimed  protection  from  it 
■Riinst  the  royal  demands  and  prerogatives,  they  nevertheless 
did  not  feel  that  it  funiishivl  any  limit  u]>on  the  freest  c\erci«c 
of  legislative,  executive,  or  judicial  functions.  They  did  not 
view  it  as  creating  an  l-Inglish  corporation,  under  tho  narrow 
OOnstraetion  of  the  common  law,  bnt  as  affording  the  means  of 


1  RobtfUon'*  AmBrioa.  B.  10. 

•  So  1  Haich.  Hbt  410.  *li ;  1  CUimtA  Anaal*.  It*,  141,  UX  118,  IGl,  179. 

•  I  tUlrh.  MIO.  25  ;  Untrh.  Coll.  1W.  MOt  S03,  906,  907. 

•  B»bBrtw«'*  Anario*.  B.  10.  •  HaWh.  Call.  tM;  »!;. 


42 


HISTORT  OP  Tn£  COLOKIES. 


[BOOKt. 


founding  a  broad  political  goremment^  aabject  to  the  crown  of 
England,  but  j'et  enjoying  many  excltiflire  privilegea.' 

§  68.  Tbo  General  Court,  in  their  address  to  Parliament,  in 
1643,  in  anawcr  to  tlic  rttntonstrance  of  certain  malocoDt«nta, 
naed  tJio  following  language:'  («)  "For  our  govcrnmont  itaelf,  it 
is  framod  according  to  our  charter  and  tlic  fuiidamoiital  and  com- 
mon laws  of  England,  nod  carried  ou  ncvurdiug  to  the  same, 
(taking  tlic  words  of  eternal  truth  and  rightcousu<.-s8  along  with 
them,  aft  that  rale  by  which  all  kiugduins  and  jui-isdictioiis  must 
render  account  of  every  act  and  administration  in  Ilie  loat  day), 
with  as  bare  allowance  of  the  disproportion  between  »uoh  an 
ancient,  populous,  wealthy  kingdom,  and  so  poor  an  infant,  thin 
colony,  as  common  n^annn  oan  afford."  And  they  then  prooeededj 
to  8how  the  trutJi  of  their  statement  by  drawing  a  parallel,  floUl 
ting  down  in  one  column  the  fundamental  and  common  taws  and 
customs  of  Rngland,  )>cginning  with  Magna  Chartn,  and  in  a  cor- 
responding column  their  own  fundauiE^ntal  laws  and  customs. 
Among  other  parallela,  after  stating  that  the  supreme  authority 
in  England  is  in  the  hijrfi  court  of  Parliament,  theyatatwl:  "The 
highest  authority  here  is  in  the  General  Court,  both  by  our  char- 
ter and  by  our  owti  positive  laws." 

§  69.  For  three  or  four  years  after  the  remnml  of  the  charter, 
the  governor  and  assistants  were  chosen,  and  all  the  business  of 
the  government  was  transacted,  by  the  freemen  assembled  at 
large  in  a  General  Court  But  the  members  having  increased, 
so  as  to  make  a  general  assembly  inconvenient,  an  alteration 
took  place,  and  in  1634  the  towns  sent  representatives  to  the  Gen- 
eral Court  They  drew  up  a  general  declaration  that  the  Gen- 
eral Court  alono  had  power  to  make  and  establish  laws,  and  to 
elect  ollkcrs,  to  mlso  monevs  and  taxes,  and  to  sell  lands ;  and 
that  therefore  every  town  might  choose  persons  as  representa- 
tives, not  exceeding  two,  who  sliould  have  the  full  power 
voices  of  all  the  freemen,  except  in  the  choice  of  ollicers 
magistrate*,  wherein  every  freeman  was  to  givo  his  own  vote.*] 

'  >  I  Hatch.  HiH.  35,  M,  37.  410,  SOT,  319 ;  Hntdi.  CoU.  IMv  IBB.  SOO,  HM.  MS, 
907,  SID.  SSO,  <I7.  4IS.  430,  477  ;  1  natch,  tlisl.  410, 41S  ;  1  CkiluMnV  Aoiula,  ttl, 
ISS.  137,  101  i  BobortMn'R  AmtHca,  B.  10 ;  Uuah.  HiU.  Colon,  ek.  3,  139. 

■  t  llBldi.  Hbt.  143.  14«i  Hutch.  Ca)L  ivt,  ftr. 

*  BotMfiMo'i  Aii>«rtM,  B.  10  i  I  Rntdi.  HW.  »,  33,  903  i  1  EIu.  CbU.  SM. 

{«)  See  POftejr,  Hut.  of  Kmr  Eogkad,  U.  Ui. 


CH.  IT.] 


KA88  AC  HUSETTS. 


48 


The  8T8t«m  thus  proposed  was  immediately  eatoblisbed  hy  com- 
mon cMitisciit,'  although  it  ie  nowhere  provided  for  in  the  charter; 
and  thus  was  formed  the  second  house  of  roprt-^entativee  (the 
first  being  in  Virginia)  in  any  of  the  colonic»-'(«)  At  first,  the 
whole  of  the  magistrat*>8  (or  assistants)  and  the  roprGsentatirea 
sat  together,  and  acted  as  one  body  in  enacting  all  laws  and  or- 
dei-s;  but  at  lenjrfh,  in  1644,  tJiey  separated  into  two  diiitinct 
nnd  independent  badicR,  each  of  which  poAHesAod  a  negative  upon 
the  actA  of  the  other.^  Thia  course  of  proceeding  continued  until 
tlip  final  difwolution  of  the  charter. 

§  70.    It  may  be  well  to  state,   in  this  connection,  that  the 

[council  establinbcd  in  Plymouth  in  a  rery  short  period  after  the 
grant  of  the  Massachusetts  charter  (in  IfiSS)  linally  mirrendered 
their  own   patent   back  to   the  crown.     They  had   made   other 

'grants  of  territory,  which  we  shall  hereafter  have  occasion  to 
notice,  which  had  irrcatly  diminished  the  value  as  well  as  impor- 
tance of  their  charter.     But  the  immediate  cause  of  the  surrender 

I  was  the  odious  extent  of  the  monopolies  granted  to  them,  which 
roused  the  attention  of  Parliament  and  of  the  nation  at  large, 
and  compelled  them  to  resign  what  they  could  scarcely  maintain 
against  the  strong  current  of  public  opinion.  The  surrender,  so 
far  from  working  any  evil,  rather  infused  new  life  into  the  colo- 
nies which  sprung  from  it»  by  freeing  them  from  all  reatraint 

land  supervision  by  a  superior  power,  to  which  they  might  per- 
haps hare  been  held  accountable*  Immediately  after  this  sui^ 
render  legal  pmcc>edingK  were  instituted  against  th«  pniprietors 
of  the  Musduchtisettx  charter.  Iliow  who  appeared  were  do- 
priTcd  of  their  franchises.  But  fortunately  the  measure  was  not 
carried   into  complete  execution  against  the  absent  proprietors 

'ftcting  imder  the  charter  in  America.' 

§71.    After  the  fall  of  the  first  colonial  charter  in  1684,' 

>  Col.  Mxl  ProriaM  Un  (Ul*).  eh.  30,  p.  07  :  Hvlcb.  Cdl,  SOS.  «c. ;  I  Hutch. 
niM.  449. 

*  1  Ilnleh.  Hdt  U,  M,  37.  «!,  Mto,  <W  ;  1  Holma'*  Annitli.  229 ;  1  Hut.  Coll. 
39>,  SIl  1  1  CbtloMta'i  Annak.  1S7. 

*  1  Hnteb.  UiM.  (18^  1  Cln)n«us'»  Amut*.  1361  Ool.  and  I'Toriucr  Lam  (1814). 
^dk  31.  p.  SS ;  Balch.  Oil.  IW :  1  Dong.  SoMnn.  131. 

*  t  HolniM'i  AnuU.  S:T  ;  1  Hu.  CdU.  300^  SPS  ;  1  CIiilmen'K  AddrU.  »t,  9S,  M. 

*  t  Hnlnia-*  Aniul*,  XS7  i  Rntc^  ColL  101,  104  ;  S  Hai.  ColL  l!3,  tU  ;  S  Chal- 
Mn'i  Ar.nal*,  111. 

*  1  UoLniM'l  lUMb,  US. 

(pi  ftitnj.  EDat  tt  H*w  EnRlmd,  I.  871. 


44 


HmOBT  OP  THE  COLOKIBS. 


[SOOK  I. 


MassncbuMtls  r«mftin«d  for  gome  years  in  a  very  dti«turi>e(l  Btat« 
under  the  arbitrary  power  of  the  crown.  At  lenfi;th  a  new  ciiar^J 
ter  was  in  16U1  granted  to  the  colony  by  William  and  Mary; 
and  it  hencefoitb  bdCAmo  known  as  a  rrorina;,  and  continued  to 
act  under  lhi»  last  charter  until  after  the  Rorolution.  The  char- 
ter comprehended  within  ite  territorial  liroila  all  the  old  colony 
of  the  Massachusetts  Bay,  tJio  colony  of  New  Plymouth,  the  prov- 
ince of  Maine,  the  tcrritury  called  Aeadie,  or  Nova  Scotia,  and 
all  the  lands  lying  between  Nova  Scotia  and  Maiuu ;  and  incor- 
porated the  whole  into  one  province  by  the  name  u(  the  I'ruviuou 
of  the  3Iii«sachii»uttK  Bay  in  New  England,  tu  be  huld<.-ii  as  of 
the  royal  muuorol  East  Grccawich,  in  the  coimty  of  Kent  It 
confirmed  all  prior  grants  made  of  land^  U>  all  pcT«on«,  corpora- 
tiontt,  eolle^rit,  towits,  vill^es,  and  schooU,  It  i-e«crved  to  the 
crown  the  a|)pointment  of  the  governor,  and  lieutenant-governor, 
and  secretary  of  the  Province^  and  all  the  offieurs  of  the  Court  of 
Admiralty.  It  provided  for  the  appointment  annually  of  twenty* 
eight  counsellors,  who  were  to  he  chosen  by  the  Qeneret  Couit, 
and  nominated  the  firat  board.  The  governor  and  conntwllorfli 
were  to  hold  a  council  for  the  ordering  and  directing  of  the 
affsirs  of  the  Provinca  The  goTcrnor  was  invested  with  author- 
ity, with  the  advice  and  coniient  of  the  council,  to  nominate  and 
appoint  "judges,  cwramissionera  of  oyer  and  termiuer,  sheriffa, 
provosts,  marshals,  justices  of  the  peace,  and  other  ofTieers  to  the 
council  and  courts  of  justice  belonRtut;."  The  gnvemorwos  also 
invested  with  the  command  of  the  militia,  and  with  power  to  ap- 
point any  chief  commander  or  other  oQicer  or  officers ;  to  train,  in- 
struct, oxcrciae,  and  goreru  the  militia,  to  lead  them  in  war,  and  . 
to  use  and  exorciw  tlic  law  martial  in  time  of  actual  war,  inva- 
sion, or  rebellion.  He  had  altio  the  power  of  callinjif  the  General 
Court,  and  of  adjourning,  proroguing,  and  dissolving  ib  He 
had  aliio  a  negative  uftou  all  lan-s  posfted  by  the  General  Court 
The  General  Court  was  to  aiiscmble  annually  on  the  last  Wednes- 
day of  &lay,  and  was  to  consist  of  the  governor  and  council  for 
the  time  bein;;,  ami  of  siicb  repn-aentativea  Wing  fre«l)iitders  M- 
should  be  annually  (;k>ctcd  by  the  freeholders  in  earh  town,  wbo^ 
posseased  a  freehold  of  forty  abillinga'  annual  value,  or  other 
estate  to  thu  valm*  of  forty  pounds.  Each  town  was  entitled  to 
tworepresentativfs;  but  tlic  General  Court  was  from  time  to  time 
to  decide  OD  (he  number  which  each  town  should  send.     The 


CH.  IT.] 


NAWAOHCSSrtS. 


45 


0«Deral  Court  was  in\-«stod  vitk  full  anthorltj  to  erect  courts, 
to  levy  taxe*t  and  make  all  wbolcsouic  laws  and  ordinances,  "so 
as  the  sAinc  be  not  repugnant  or  contrary  to  the  taws  of  Eng- 
land ; "  and  to  settle  annually  all  civil  ofticent  whose  appointment 
was  not  othorwiae  provided  for.  All  lawn,  bowsTer,  were  to  he 
itcnt  to  Kiigland  for  approbation  or  disallowance;  and  if  disal- 
lowed, and  so  signified  under  the  aign  manual  and  signet,  within 
throe  years,  the  same  thenceforth  to  cease  and  become  void; 
otborwiHc  to  continue  in  force  according  to  the  terms  of  tticir 
original  enactment.  The  Genera!  Court  was  also  invested  with 
authority  to  grunt  uoy  lands  in  the  colonics  of  lIuSDactnisetta, 
New  Plymouth,  and  province  of  Uoine,  with  certain  exceptions 
The  governor  and  council  wer«  invratiMl  with  full  jusrisdiction 
as  to  the  prul>ut4;  of  wills  and  granting  administratioiut.  Tho 
goTcnior  vtus  also  made  commander-in-chief  of  the  militia  with 
the  ustuil  martial  |>oworii;  but  waa  not  to  exercise  martial  law 
without  the  adrice  of  tlie  council.  In  case  of  bis  death,  removal, 
or  absence,  his  autliority  was  to  derolre  on  the  lieutenant-gov- 
enuH*,  or,  if  bis  ofltoe  was  va<'ant<,  then  on  the  council.  With  a 
view  also  to  advance  the  growth  of  the  Province  by  encouraging 
new  settlements,  it  was  expressly  provided  that  there  should  bo 
"a  liWrty  of  conscience  allowed  in  the  worship  of  Ood  to  nil 
Chrisiiarai  except  Papists;"  and  tliai  all  suhjeota  inhabiting  in 
the  province  and  their  children  bom  there,  or  on  the  aeaa  going 
or  returning,  should  have  all  the  liberties  and  immunities  of  free 
and  natural  subjccla,  as  if  they  were  bom  within  the  realm  of 
England.  And  in  all  cases  an  appeal  was  allowed  from  the  judg- 
ments of  any  courta  of  the  Province  to  the  King  in  the  Pri>7' 
Council  in  England,  where  the  matter  in  difference  exceeded 
three  hundred  )>uunds  sterling.  And  finally  there  waa  a  reserva- 
tion of  Uie  whole  admiralty  jurisdiction  to  the  crown,  and  of  a 
right  to  all  aubjocts  to  fish  on  tho  coasts.*  Considering  the 
spirit  of  the  times,  it  must  )>o  acknowledged  that,  on  the  whole, 
this  cliart«r  contains  a  liberal  grant  of  authority  to  the  Provineo, 
and  a  reasonable  re«en-aUun  of  tho  royal  prerogative.  It  was 
haiiled  with  sincere  satisfactjou  by  the  colony,  after  the  dangers 

>  Thfl  ehartar  <nU  tie  tmoA  aX  Utgt  In  tha  CcAonj-aad  Piarlaea  Lawi  at  Jtumthui- 
Ktta.  F<riDUa  In  ISU.     lu  Rnbataam  b  woll  «unHn(d  op  In  1  HoImm^  ApmIi,  48«. 

Oftdor  tha  Ant  4hui«r  tiM  •ilmlnUlr  Jari*iiicUM  •»  MtHciad  hj  tlnOoltakl  Com- 
BU  Uw  OMutt,  tnu  la  tafnul  ousa.    1  Hatch.  Hut.  UI. 


46 


mSTOBY  OP  TBB  C0L0SIE8. 


[BOOS  I. 


which  had  for  so  long  &  time  mcuaced  its  liberties  and  its 

§  72.  In  reviewing  the  lawn  paRRed  hy  the  Ij«g)slatiirc  of  Massa- 
chusetts during  its  colouial  state,  the  first  and  nioflt  important 
consideration  in  the  early  care  with  which  the  ptiblic  rights  of 
the  inhnhitants  were  declared  and  established.  N'o  man's  life, 
person,  honor,  or  good  name  was  to  be  affected ;  no  man  was  to 
be  deprived  of  bis  wife  or  children  or  estate,  ontcss,  by  virtue 
or  equity  of  some  cxpn-ns  law  of  the  General  Court,  "or,  in  casa 
of  a  defect  of  a  law  in  any  particular  cium,',  by  the  Word  of  God; 
and  in  capital  casvs,  or  in  casi'S  uf  dismembering  or  banishment 
according  to  that  Word,  to  be  judged  of  by  the  General  Court"" 
No  persona  but  church-mcmbcrs  were  allowed  to  become  freemen ; 
and  all  persona  of  twenty •ooe  years  of  age  were  allowed  to  dispose 
of  their  estate  by  will  or  any  proper  conveyance.'  All  convey- 
ances were  to  bo  by  deed  acknowledged  and  recorded  in  the  pub- 
lic records.*  AH  lands  and  hereditaments  were  duelarod  free 
from  all  fines  and  forfeitures.  Courts  of  law  were  cstahtishcd, 
and  local  processes  provided  for.'  llie  trial  by  jury  in  civil 
and  criminal  esses  was  secured.*  Wager  of  law  was  uut  allowed 
but  according  to  law,  and  according  to  the  precept  in  Exodus 
(xxii.  8).  DifTicult  cases  of  law  were  finally  determinable  in  the 
Court  of  Assistants  or  in  tlte  General  Court,  by  appeal  or  peti- 
tion. Id  criminal  cases  where  the  law  prescribed  no  pcnal^, 
the  judges  had  power  to  inflict  penalties  "According  to  tlie  mie 
erf  God's  Word."'  Treason,  murder,  poisoning,  arson,  witch- 
craft, sodomy,  idolatry,  blasphemy,  man-stealing,  adultery,  false 
witness,  conspiracy,  and  rei>ellion,  cursing  or  smiting  of  parents 
by  children,  l)eing  a  stubt>om  or  rebellious  sun,  burglary,  and 
rape  (in  particular  circumstances)  were  offences  punishable  with 
death."  For  tlte  severity  of  some  id  these  punishments  the  Gen- 
eral Court  expressly  justified  themselves  by  the  language  uf  the 


>  1  Hutch.  HbL  415.  IIS. 

•  Hutch.  CoU.  »1. 

■  Amt.  Col.  aad  Pror.  Un.  ab.  4.  {v  <4 ;  ch.  ]<I4,  p.  3IM. 

•  Ant.  CtA.  ua  Prev.  Lam,  clul,  p.tl;cli.28,ii.S8;l  Hutch.  Slit.  US. 

•  Hiitcli.  Cull.  :t03.  iM. 

•  1  Hnlck  HUi.  ISO ;  Hutch.  OoU.  t03,  SOS. 
T  Hutch.  OolL  IDS. 

■  Ant.  Col.  MtdPiwr.  Uwt,  «h.  IS,  pfi.  SK,  S»^  SO  1 1  Uuleh.  UuL  110,  141,  (IS; 
1  Mk.  N««  UuiptUn.  ok.  I,  p.  Ml 


CH.  IT.] 


HASaACHDBEm. 


47 


Scripturt-a  But  theft  was  not  puniabed  vith  death,  l>e«ause, 
as  they  tiaid,  ''wo  read  othervriitc  In  the  Scriptures;"  >  and  manj 
other  oriim-s  uf  n  huinoiu  nuturu  wore  aufforad  to  pasx  witli  a  mod- 
erate piiiiidhiuviit.'  llutchiiiitou  hiifl  null  ubAcrvc-d,  tliat^in  pim- 
itthing  ofToiici.ti  they  pru(c«8cd  tu  be  ^vcmed  by  the  judieiul  lawa 
of  Moses,  but  no  further  than  those  laws  were  of  a  niorul  na- 
ture."' Mftrriages  were  celebrated  exchisively  by  magistratM 
during  the  first  charter;  though  afterwards  there  WM  a  concur- 
rent power  given  to  the  clerg}.*  Divorces  a  mnua  €t  thoro  socm 
nut  to  have  been  in  use  during  the  period  of  the  lirst  charter; 
but  for  the  same  causes  for  which  such  a  divorce  might  be  granted 
by  the  spiritual  courts,  a  divorce  a  vinculo  was  granted.  I<Vma]e 
adultery  was  a  suflicieut  cause;  but  male  adultery  noL^  In  ten- 
demesa  to  the  marriage  state,  a  man  who  struck  his  wife,  or  a 
woman  her  husband,   was  liable  to  a  fine.* 

§  78.  In  the  beginning  the  county  courte  had  jurisdiction  of 
the  testamcntar}'  matters,  and  real  estate  was  at  first  treated  as 
mere  boita  in  the  civil  law.  When  a  positive  rule  was  made,  all 
the  estate  was  (apparently  with  some  reference  to  the  Mnsaic 
law)  made  subject  to  distribution;  the  widow  had  such  juirt  of  the 
estate  as  the  court  held  jufit  and  equal;  and  the  rent  was  divided 
among  (he  children  or  other  heirs,  the  eldest  son  having  a  doablo 
portion,*  and  the  daughters,  where  there  wore  no  soaa,  inheriting 
as  coparceners,  onless  the  court  otherwise  should  determina' 
If  the  party  died  insolvent,  his  estate  was  distributed  amuug  all 
his  crL-dilors,  thi^re  not  being  any  prefurunoo  uf  any  debts  by 
judgment  or  specialty.* 

The  law  uf  iiihoritnuce  was  thus,  as  we  »ce,  altered  from  that 
of  England  frum  the  bi-ginning;  and  yet,  strangely  enougl),  the 
Ocncral  Court,  in  thoir  answer  in  ICAfi,  considered  their  canou 
of  deaocntos  parullel  to  tlie  Eoglish  law,  and  expounded  it  by 
the  same  terms,  "  the  eldest  son  is  preferred  before  tlie  younger 
in  the  ancestor'a  inheritance,'*'"  when  in  reality  he  had  only  a 

>  Uoteh.  ColL  SW. 

•  1  Hnteh.  Hitt.  (13,  iiS,  iU  \  Anb  Oat.  mi  Pror.  La>N  ch.  IT.  p.  H. 
■  1  nmA.  Ilut.  iU,  439.  •  1  Hulcli.  lliit.  tt(. 

*  I  nukh.  Hut.  4iSu  ■  1  HduIl.  Ilict.  IIS. 
T  I  Butch.  HbL  4t«. 

•  A>t.  Col.  >»d  Pn>T.  tin,  rli.  IM.  ^  MW. 

*  I  Hatch,  Bist.  US. 
-  Hnicli.  OolL  »}T  ;  1  Qnteh.  niit.  417 ;  AaLCoL  uuIPmt.  Uin,  ch.104,  p.  SO<u 


48 


BISTORT  OF  THR  COLOKIKS. 


[book  I. 


double  portion,  and  the  estate  u-as  partible  among  all  the  chil- 
dren. Their  land  being  by  the  charter  held,  as  of  the  manor  of 
East  Greenwich,  in  free  and  common  socage,  they  attribnt«d  to 
it  the  gavelkind  quality  of  not  being  forfeited  for  felany  or  trca- 
Bon;  and  the  convict  might,  therefore,  even  aft«r  soutvnco,  dis- 
pose of  it  by  wilLi  Eatatea  tail  were  recognized,  and  in  such 
caaos  tbe  heir  took  pfr/ormam  doiU,  according  to  the  common 
law,  and  not  all  the  children  tm  one  heir." 

§  74.  In  respect  to  ecclesiastical  coiiccnis,  they  made  ample 
provision  for  their  own  church  (meaning  the  Uongregational 
Church),  exclusive  of  all  others.  In  tlieir  parallel  in  lfU6,  they 
quote  the  provision  of  Magna  Charta,  that  "Die  chur<!h  shall 
enjoy  ail  licr  libcrtica,"  and,  dropping  all  suggecttion  of  the  real 
difTt^rence^  of  their  own  church  estal^Iisbment  from  that  of  Eng- 
land,  they  qiiot«  their  own  provision,  that  "all  persomi  orthodox 
in  judgment,  and  not  scandalous  in  life,  may  gather  into  a  church 
fttate,  according  to  the  rules  of  the  goA])el,"  aa  of  aimiiar  import.* 
They  gave  to  their  own  churchea,  when  organized,  full  power  and 
authority  to  inflict  ecclesiastical  censures,  und  even  to  cxpol 
members.  But  Uioy  rceorvcU  to  the  civil  authority  the  further 
power  to  pnniah  offences,  and  "the  liberty  to  see  tbe  peace,  or- 
dinances, and  nilea  of  Christ  observed."*  Every  church  had  lil»- 
orty  to  elect  its  own  officers,  and  "  no  injunction  was  to  bo  put 
upon  anydiurcb,  church  officer,  or  member,  in  point  of  doctrine, 
worshi)),  or  discipline,  whether  for  substance  or  circtimstonc 
besides  the  institution  erf  the  Lord."'  But  the  General  Cour 
with  the  assistance  of  the  clergy,  wore  in  the  habit  of  judging 
of  all  such  multem  with  supromo  authority,  and  of  condemning 
errors  with  uo  sparing  liamL  They  had  not  tlie  slightest  scruple 
of  punishing  heresies  with  riim  and  banishmont>  and  oron,  in 
otK4tinate  casea,  with  death."  Ministera  were  maintained  and 
public  worship  provided  for  by  taj(es  assMscd  upon  the  inbabi- 


>  1  Hntch.  HUt.  4tT.  *  1  Hntdi.  Hirt.  M. 

•  HaUdi.  CollNt.  V>1 1  AM.  Oaloai.  ud  Prov.  Uimt,  «^  39,  p.  IM ;  1  Uu  Call. 
I8S. 

*  Ant.  Od.  ud  1>roT.  Lmra,  di.  99,  jip^  100. 101. 
«  I  ilmdi.  Hut.  *if>.  4SI,  4S£.  4S3. 13^  131 ;  I  B«lk.  Vm  Hunp.  ch.  4,  p^  70;  71.~ 

'    •  RobntMit'*  Amrrkk,  B-  10 ;  1  8v)k.  Vtn  Huvp.  ch.  t.  t■^  TO  la  7T  :  Aat  Col, 
■n<l   Ptqv.    U«>,  cIi.  57.  |>.  W\.  kc  ;  Hntdi.  Col.  SI9,  Zl« i  1  tliuli.  niaL  431 ; 
Hatcb.  HiM.  42  -,  1  Uu.  CoU.  S88  ;  1  Ctulacn'B  Aoiud^  l«t,  I6t,  ISS,  1<7. 1II&,  IS 
l>Ok  191,  19*. 


Cfl.  17.] 


HAaBACHirunra. 


40 


tanUt  of  each  parochial  district ;  and  an  attendance  tipon  public 
worahip  vas  required  of  all  persuna,  noder  p«iuilties,  as  a  sol- 
emn duty.'  So  ofTccttiul  wirre  the  oolooial  laws  in  respect  to 
conformity,  and  bo  powerful  tlio  intlucnfc  of  the  mafnstrates  and 
tlio  clerj!;}-,  that  HiittfhimoD  informs  ax  that  there  wm  not  "tny 
Episcopal  Church  in  any  part  of  th«  colony  until  the  charter  was 
vacated.  "> 

§  75.  But  the  moat  strikinfr,  oa  well  as  the  moat  important 
part  of  their  Ic^slation,  is  in  rmpect  to  edncation.  As  early  as 
ltS47,  the  (i«ueral  Court,  "to  the  end,"  as  the  preamble  of  the 
act  declares,*  "that  lenminft  may  not  be  buried  in  the  frravea  of 
our  forefathers  in  church  and  commonwrcalth,"  provided,  under 
a  penalty,  that  every  township  of  fifty  householders  "shall  ap- 
point a  public  school  for  tlie  instruction  of  children  in  writing 
and  reading,"  and  that  every  town  of  one  hundred  householdei'S 
"shall  set  up  a  grammar  school,  the  master  thereof  being  able 
to  instruct  youth  so  far  as  may  be  fitted  for  the  university." 
This  law  has,  in  nntiatance,  continued  down  to  the  present  timea; 
and  it  has  contributed  more  than  any  other  circumstance  to 
give  that  peculiar  character  to  the  inhabitants  and  institutiona 
of  Massachusetta  for  which  she,  in  common  with  the  other 
New  Knglnnd  States,  indulges  an  honest  and  not  unrcaaonabte 
pride. 

§  76.  After  the  grant  of  the  provincial  charter,  in  1691,  the 
legislation  of  the  colony  took  a  wider  scope,  and  became  more 
libera!  as  well  as  more  enact  At  the  very  first  session  an  act 
passed,  declaring  the  general  rights  and  liberties  of  tbo  people, 
and  embracing  the  principal  proviHinns  of  Magna  Charta  on  this 
subject  Among  other  things,  it  was  declared  that  no  tax  could 
he  levied  but  by  the  General  Court ;  that  the  trial  by  jury  should 
be  secured  to  all  the  inhabitanta;  and  that  all  Innda  shall  bo 
(reo  frran  escheats  and  forfeitures,  except  in  casca  of  high  trea- 
son.* A  Aa&eot  eorpua  act  was  also  paused  at  the  aanio  session; 
but  it  seems  to  hax-e  been  disallowed  by  the  crown.^  Chalmers 
asserts  that  there  la  no  circumstance  in  the  history  of  colonial 


t  I  HbuIi.  HW.  427 ;  Ant.  Col.  mkI  Ptot.  Uw*.  eh.  8&.  pp.  103, 101. 

*  1  HoU-h.  eut.  431. 

*  Ant.  Col.  kn<l  Prer.  Uwa.  ch.  S8.  p.  IW. 

*  3  llouli.  Hat  S4  :  Ant.  Cot  knd  Prov.  Um,  di.  3.  p,  SI4. 

*  3  Hatch.  Hitt.  61. 

TOT-  I.  — 4 


■i 


50 


BISTOBT  OF  TDK  O0LOKIE8. 


[book  1. 


jurUpnidcnco  better  establishod  than  the  fact  that  Ui«  haheaa 
eorpuM  Act  was  not  extended  to  the  pl&ntatioiu  untii  the  reign  of 
Qiieeii  Aiiue.' 

§  77.  It  doe«  not  Bccin  necessary  to  go  into  any  iniuuto  cxam^ 
ination  of  the  sulisequent  provincial  legislation.  In  it«  geticr 
character  it  did  not  materially  vary  from  that  antecedently 
adopted,  except  bo  far  as  the  charter  reqaired,  or  a  progressive 
spirit  of  improvement  invited  a  change.  Lands  were  niadc  lia- 
ble to  the  payment  of  dobta;  the  right  of  choosing  their  minister 
vas,  after  some  stnigglcs,  secured  in  effect  to  the  concurrent^ 
vole  of  the  church  and  congregation  in  each  parish;  and  the 
spirit  of  religious  iutoleranee  was  in  some  measure  checked,  if 
not  entirely  subdued.  Among  the  earliest  acts  of  the  provincial 
L^islature,  which  were  approved,  was  an  act  for  the  prereution 
of  frauds  and  perjuries,  conformable  to  that  of  Charles  the  Sec* 
ond;  an  act  for  the  olaervance  of  the  Lord's  Day;  an  act  for  sol- 
emnizing marriages  by  a  minister  or  a  justice  of  peace;  an  act  for 
tlie  support  of  ministers  and  achoolmasters ;  an  act  for  regulat- 
ing towns  and  countieii;  and  an  act  for  the  settlement  and  distri- 
bution of  the  estates  of  persons  dying  intestate.*  These  and  many 
other  acts  of  general  utility  have  continued  substantially  in  force 
down  to  onr  day.  Under  the  act  for  the  distrihution  of  estatea,. 
the  half-blood  were  permitted  to  inherit  equally  with  the  whole  J 
blood.'  Entails  wore  preserved  and  passed  according  to  the 
course  of  descents  of  the  common  law;  but  the  frcticral  policy  of 
tlie  State  silently  reduced  the  actual  cjreatiou  of  such  estates  to 
comparatively  narrow  limits. 


>  ]  Ctulm.  Anutli,  H.  T4. 
*  a  Uukh.  HbL  4i,  H. 


•  ma.  N. 


en.  T.] 


KKW   UAUraBIBB. 


61 


CHAPTKR  T, 


NEW   BAHPlitttRR. 


§  78.  Hatinc  gone  into  a  full  coiigidcration  of  the  origin  and 
political  orgAnization  of  the  primitire  colonics  in  the  SuutJi  und 
North,  it  remains  only  to  take  a  rapid  view  of  those  which  were 
subfleqnently  eslablifthed  in  both  regions.  An  historical  order 
will  probably  be  found  as  convenient  for  this  purpose  as  any 
which  could  be  dcviai'd. 

§  79.  In  Nororobor,  1620,  Captain  John  Mason  obtained  a 
grant  from  the  Connt-n  of  Plymouth  of  all  that  part  of  the  main- 
land in  New  England  "  lying  upon  the  8«a-coast,  beginning  from 
the  middle  |<«irt  of  Merritnuck  River,  and  from  thcnec  to  proceed 
northwards  along  the  st^'a-coust  to  Pigcata(|ua  River,  und  »o  for- 
wards up  within  the  said  river  and  to  the  furthest  iH^d  theruof ; 
and  from  tlieuce  north  westwards  until  thrcmcore  miles  tic  fin- 
ished from  the  first  entrance  of  Piscataqua  Itivcr;  and  also  from 
Merrimack  through  the  said  river  and  to  the  furthest  head  thereof, 
and  so  forwards  up  into  the  lands  westwards,  until  threescore 
miles  be  finished ;  and  from  thcnoc  to  cross  overland  to  the  end 
of  the  threescore  miles  accounted  from  Piscataqua  River,  together 
vith  alt  islands  and  islets  within  five  leagues'  distance  of  the 
premises."'  This  territory  was  afterwards  called  New  Hamp- 
shire The  land  so  gntntetl  was  expressly  subjected  to  the  con- 
ditions and  limitations  in  the  original  patent;  and  there  was  a 
covenant  on  the  part  of  Mason,  that  he  would  establish  such  gov- 
ernment lltercin,  and  continue  the  name,  "as  shall  be  agreeable, 
M  near  as  may  be,  to  the  laws  and  customs  of  the  realm  of  Eng- 
land;" and  that  if  charged  with  neglect,  he  would  reform  the 
same  according  to  the  discretion  of  the  president  and  council ;  or 
in  default  thereof,  that  the  aggriored  inhabitanta  or  planters, 
tenants  of  the  lands,  might  appeal  to  the  chief  court  of  justice  of 
the  president  and  council.  A  further  grant  was  made  to  Mason 
by  the  Council  of  Ptrmoutfa  about  the  time  of  the  surrender  of 


■  lUi.  O"  <«> '  I  Hotnua'i  Annik,  IM ;  1  B«Ik.  N*w  Urnp.  cL  I.  [k  U. 


52 


BISTORT  or  THE  COLON'fEB. 


[book  I. 


their  charter  (22  April,  16lt5),  "beginning  from  the  middle  part 
of  Xnumkeag  River  [Halcm]  and  from  thenoe  to  proceed  eaafc* 
vardH  along  the  aea-coaat  to  Cape  Ann  and  round  about  the  sams 
to  Piscataqua  harbor;"  and  then  covering  much  of  the  land  in' 
the  prior  grant,  and  giving  to  the  whole  the  name  of  Xew  Uamp- 
ahire.*  Thia  grant  included  a  power  of  judicature  in  all  caaes, 
civil  and  criminal,  "to  he  exercised  and  executed  according  to 
the  laws  of  England  aa  near  as  may  be,"  rcson'ing  an  appeal  to 
the  council.  No  patent  of  confirmation  of  tliis  grant  appt-ars 
to  have  been  nude  b;  the  crown  after  the  surrender  of  the  Pljr- 
inoufh  patent* 

§  80.  Various  detached  settlements  were  made  within  thia 
territory;  and  »o  ill  defined  were  the  bounduriea,  that  a  contro- 
Tersy  soon  arose  between  Haasachuttetts  and  Masun  in  respect  to 
the  right  of  sovereignty  over  it.*  In  tiic  cxpottition  of  its  own 
charter  Massachusetts  contended  that  its  limits  included  the 
whole  territory  of  New  Hampahirc;  ajid,  being  at  tliut  time  com- 
paratively strong  and  active,  she  succeeded  la  catablishing  her 
jurisdiction  over  it,  and  maintained  It  with  unabated  vigil 
for  forty  years.*  The  controversy  waa  finally  brouglit  before 
king  in  council;  and  in  1679  it  was  solemnly  adjudged  agaii 
ttic  claim  of  Mussuchusetls.  And  it  being  admitted  that  Mason, 
under  his  grant,  had  no  riglit  to  exercise  any  powers  of  gox-em- 
ment,  a  commiwiion  was,  in  the  same  year,  issued  by  the  crown 
for  the  government  of  New  Hajiipshirv.'  By  the  form  of  govern- 
ment described  in  this  commission  the  whole  executive  power 
was  vested  in  a  president  ami  council  appointi'd  by  the  crown, 
to  whom  also  was  oonfidcd  the  judiciary  power  with  an  appeal 
to  England.  In  fho  administration  of  justice  it  was  directed, 
that  **  the  fonn  of  proceedings  in  such  cases,  and  the  judgment 
thereon  to  be  given,  be  as  consonant  and  agreeable  to  the  lavrs 
and  statutes  of  thia  our  realm  of  England,  as  the  present  stat 


■  1  ItM.  CoIL  SSS,  384.  SSS  ;  1  dulm.  AnwJi^  172,  473, 4TT  ;  1  B«Ut.  H.  Ihinp. 
cb.  1,  p.  17. 

<  1  Haldi,  HiiL  SIS.  SI  4  :  MmIi.  Colon,  oh.  3.  p.  9J. 

*  1  HaKti.  HiM.  101.  lOS.  100,  >11,  S13  to  SIS. 

*  1  Clulm.  Annak  477.  4S4.  4SS.  M4,  CDS  ;  iUnh.  Cotoa.  ch.  4,  p.  IM,  di.  «, 
pp.  147,  laS  :  nulch.  Coll.  422 ;  1  Bdk.  N.  Ilunp.  cb.  2.  pp.  tS.  SO. 

*  IChilnt.  AiuialH,  48B.  iM;  1  Hutch.  UliL  3I>  i  1  Rolnut'i  AatiiU,»H  lUiid 
Cohm.  ch.  «.  p.  leS;  R»b.  Amcrio,  K  10  ;  1  B«lk.  V.  H«nip.  eh.  6,  pp.  W,  1» ;  1 
Bong.  Baaan.  S8 ;  H,  Ukinp.  Piot.  I«n  (edit.  1771),  p.  1.  to 


en.  v.] 


HEW   HAKPBHIBR. 


68 


and  condition  of  our  nubjcctn  inhabiting  within  the  limits  afore- 
said, and  the  circumfitancea  of  the  place  will  admit"'  The 
legialatiTe  power  was  intnistcd  to  the  prenident^  council,  and 
burftessea,  or  ropresentativea  choAcn  l>y  the  towns;  and  they  were 
authorized  to  lery  taxcti  and  to  make  laws  for  the  interest  of  the 
Province;  which  laws,  bcin^  approved  by  tho  president  and  coun- 
cil, wore  to  8lund  and  be  in  (orcc  until  the  pleaaure  of  the  kinp 
should  be  known,  whcUier  th«  name  laws  and  ordinances  should 
receive  any  diange  or  couririnution,  or  be-  totally  disallowed  and 
discharged.  And  tlic  president  and  cotmcil  were  required  to 
timiiamit  and  send  over  tJie  aumc  by  the  lirst  slitp  that  should 
depart  thenco  for  England  after  tlieir  making.  Liberty  of  con- 
Bcicnoo  wwi  allowed  to  all  Protostants,  those  of  the  Church  of 
England  to  be  particularly  encouraged.  And  a  pledge  wn«  given 
in  the  commisaion  to  continue  the  privilege  of  an  assembly  in 
the  same  manner  and  form,  unless  by  inconvenience  arising  there- 
from the  crown  should  sec  cause  to  alter  the  same.*  A  body  of 
laws  was  enacted  in  the  lirst  year  of  their  legislation,  which, 
upon  being  sent  to  England,  was  disallowed  by  the  crown.*  New 
Hampshire  continued,  down  to  the  period  of  the  Revolution  to 
be  governed  by  commission  as  A  royal  Province;  and  enjoyed  the 
privilege  of  enacting  her  own  laws  through  the  instrumentality 
of  a  general  luutcmbly,  in  the  manner  provtdeil  by  the  fint  com- 
mission.* Some  alterations  were  made  in  the  snccessive  com- 
missions, but  none  of  them  nruide  any  .tnlifttantive  change  in  th« 
organisation  of  the  Province.  Tlic  judicial  power  of  the  governor 
and  council  was  subsequently,  by  law,  confined  to  the  exercise  of 
appellate  jurisdiction  from  the  inferior  courts ;  and  in  the  later 
commissions  a  clause  was  inserted,  that  the  colonial  atatutes 
should  "  not  be  repugnant,  but  aa  near  as  may  bo  agreeable,  to 
the  laws  and  statutes  of  the  realm  of  Eugland."' 

§  81.  The  lawa  of  New  Uampshire,  during  its  provincial  slate, 
partook  very  much  of  the  character  of  those  of  the  neighboring 
proTince  ol  Massachusetts.'    Those  regulating  tlio  descent  and 

'  H.  HiMp.  Pro».  I*m.  {clil  1T71).  pp  1.  3. 

•  1  Cbdm.  AmuU,  489.  490  ;  1  l<cJm«'*  Annilt,  ME ;  )  Kolk.  N.  Bmf.  Ot.  *, 
pp.  ISa,  IBB ;  3  Ottk.  S.  Uunp.  PnCu* ;  V.  Huip.  Pmr.  U<n  (adit.  1771),  ^  &■ 

•  IMd. 

•  1  Clwlin.  Aao^it.  4»1,  492;  IVS.  S0& 

•  H.  Bmf.  PriiT.  Un  (tdiL  im).  p.  «1.  mi  R 

•  K.  Hmp.  PkVT.  U<n  (tdiL  1771),  Id.  IS,  65,90,  IM,  10S.187, 143, 157, 188,  IM. 


54  HISTOBT  OP  THE  COLONIES.  [BOOK  I. 

distribation  of  estates,  the  registration  of  coDTejances,  the  tak- 
ing of  depositions  to  be  used  in  the  civil  courts,  for  the  main- 
tenance  of  the  ministry,  for  making  lands  and  tenements  liable 
for  the  payment  of  debts,  for  the  settlement  and  support  of  public 
grammar  schools,  for  the  suppression  of  frauds  and  perjuries, 
and  for  the  qualification  of  voters,  involve  no  important  differ- 
ences, and  were  evidently  framed  upon  a  common  model.  New 
Hampshire  seems  also  to  bave  had  more  facility  than  some  other 
colonies,  in  introducing  into  her  domestic  code  some  of  the  most 
beneficial  clauees  of  the  acts  of  Parliament  of  a  general  nature, 
and  applicable  to  its  local  jurisprudence.  >  We  also  find  upon 
its  statute  book,  without  comment  or  objection,  the  celebrated 
Plantation  Act  of  7  A  8  William  S,  ch.  22,  as  veil  as  the  acts 
respecting  inland  bills  of  exchange  (9  &  10  William  S,  ch.  17), 
and  promissory  notes  (4  Anne,  ch.  9),  and  others  of  a  less  promi- 
nent character. 

>  N.  Hunp.  Pror.  Ltws  (sdit.  1771),  p.  209 ;  Got.  Wentworth'a  CommlMioii  in 
1766. 


MAINS. 


55 


CHAPTER  VI. 


■AIHB. 


5  82.  In  Aognsl,  1622,  the  Coancil  of  Plymouth  (which  neenia 
to  have  been  estromcly  profitfc  aud  iiicoiwidcrmt*  ia  its  grants ') 
granlod  to  Sir  Fcrdinando  Oorgvs  and  Captiiu  John  Ma«ou  all 
the  land  lying  between  the  rirent  Merrimack  and  Sa^duhock,  ex- 
tending back  to  th«  great  Inkeit  and  rivera  of  Canada;  u-liicb  was 
called  Laconia.'  In  April,  1639,  Sir  Fcrdinando  obtained  from 
the  erown  a  eonJ)rmator>'  grant  of  all  th«  land  from  Piscataqua 
to  ^agadahock  and  the  Kennebec  River,  and  from  the  coaftt  into 
the  northern  interior  one  hundred  and  twenty  miles;  and  it  was 
Btyled  "The  Province  of  Maine."*    Of  this  province  he  was  made 

rliord  Palatine,  nith  all  the  powers,  jurisdiction,  and  royalties 
elonging  to  the  Bishop  of  the  County  Palatine  of  Durham ;  and 
the  lands  were  to  he  holdcn  aa  of  the  manor  of  East  Greenwich. 
I'he  charter  contains  a  reaenalion  of  faith  and  allegiance  to  the 
crown,  aa  having  the  supreme  dominion;  and  the  will  and  pleas- 
ure of  the  crown  ia  signified,  that  the  religion  of  the  Church  of 
England  bo  professed,  and  ita  ecclesiaatioal  government  estate 
liahed  in  the  province.  It  also  authorizes  tlie  Palatine,  with  (he 
BMent  of  the  greater  part  of  the  freeholders  of  the  province,  to 
make  laws  not  repugnant  or  contrary,  but  aa  near  as  conveniently 
may  be  to  the  Uws  of  Englund,  for  the  public  good  of  the  Prov- 
ince; and  t«  erect  courts  of  judicature  for  the  determination  of 
all  civil  and  criminal  causes,  with  an  appeal  to  the  Palatine. 
But  all  the  puwent  of  gOTcrnment  so  granted  were  to  be  subordi- 
nate to  the  *'  power  and  repenunt "  of  the  lords  oommissiouers  for 

LForeign  plantations  for  tlie  time  being.  The  Palatine  also  had 
authority  to  make  ordinances  for  the  government  of  the  province, 
under  certain  rcAtrictions,  and  a  grant  of  full  admiralty  powers, 
subject  to  tliose  of  tJie  I^ord  High  Admiral  of  England.     And 

>  I  HaUk.  IliM.  8,  104 ;  Rol).  Anwriias  B.  10  ;  1  Douft.  Sunn.  3M^  S80,  SU. 

*  tUnuh.  HkLSlS;  1  HolmM'ii  AniMb,  ISO:  I  It«lk.  N.  Hiiap.ek.1,  p.  14. 

*  1  lioliBM'*  Autb.  SSI  1 1  Chalm.  AnuK  17%  173,  t7<  ;  1  Dong.  Bnam,  384,  «& 


66 


BI8T0B7  OP  THB  COLOKIES. 


[BOOK  I. 


the  inhabitants,  being  subjocU  of  the  crown,  wen  to  onjoj'  all 
tiie  li^ts  and  privilcKOi  of  natursl-bom  subjocts  in  Enj^land.^ 

§  83.  t'lidii'r  thf.'so  ample  prorisiona  Gorgvs  soon  cittabliHbcd 
a  civil  govcnimcat  in  thv  provinoo,  ood  uuidu  urdiauui-^>fl.  Tbo 
Roremment,  such  u  it  waft,  was  sold)'  ooQfidod  to  Ihv  executive, 
wiUiout  any  jMwont  of  logislatiou.  Tlie  province;  lani^islivd  in 
imbecility  under  liifi  care,  and  began  to  an|uire  vigor  oaly  when 
be  ccaaed  to  act  as  proprietary  and  lawgiver.'  Mafliuiubuitctts 
aoon  afterwards  set  up  an  exclusive  right  and  jurisdiction  over 
the  territory,  as  within  its  chartered  limits,  and  was  able  to  en- 
force obedience  and  submission  to  its  power.'  It  conlinuvd 
imdor  the  jurisdictiou  of  3fussuchu8«tts  until  1666,  when  the 
Bommisai oners  of  the  crown  separated  it  for  a  short  period ;  hut 
the  autliority  of  Massachusetts  was  soon  aftorwardx  rc-«stab- 
liafaed.*  The  controrcny  butwecn  Massachusetts  and  tlio  Pala- 
tine, as  to  jurisdiction  over  the  Province,  was  brought  before  th« 
Privy  Council  at  the  same  time  with  that  of  Mason  rcitpectiug  New 
Hampshire,  and  the  claim  of  Uanachusetts  was  adjudged  void.' 
Before  a  final  adjudication  was  had,  Ma.<)Aachuiu>tla  had  the  pni- 
deiice  and  sagacity,  in  ItiTT,  to  purchase  the  litlo  of  Gorges  for  a 
triOing  sum ;  and  tlius,  to  the  great  disappointment, of  the  crown 
(then  in  treaty  for  the  same  object),  succewled  to  it,  and  held  and 
governi-d  Maine  as  a  provincial  dependency,  until  tlm  fall  of  its 
own  charter;  and  it  afterwards,  as  we  have  seen,  was  incorporated 
with  MassacliuBetts  in  the  provincial  charter  of  1691.* 

)  I  Hu.  CoU.  443,  <«s. 

*  1  CluJiu.  Aniwb,  4r<,  4T> ;  1  Halma'«  Jbiiub,  SSI,  tS$,  SM. 

*  1  Chats.  Aniuli,  IM,  481.  183 ;  1  Hntek.  Uutorr,  17(1,  177,  SS«:  1  HoIm^ 
Anwda,  SH ;  S  WJsUiMp'i  Joum.  $1  42. 

«  1  Oulm.  ABoab,  433;  4S4  1  I  HoliiMt'i  A*n*U,  US,  348 ;  Hatch.  CoU.  4$8. 

*  1  Chilu.  Aniuk,  US,  SM,  S03  1  I  HoIim-i  Annik  it*- 

*  1  CtuUa.  AnMb,  tit,  187  )  t  HdIidm'*  Annak,  ttt ;  1  llntcli.  Hut.  »>. 


CH.  tilJ 


CONMBCnCDT. 


57 


CHAPTER  VIL 


OONKBCnCDT. 


I 


$  84.  COMIfRCnCOT  waa  originally  bcMImI  under  tbe  protection 
of  MaflAscliusetts ;  but  the  in^iubitants  in  a  fow  ypsm  aftorwanis 
(1(S38)  felt  at  liberty  (altt'r  tlic  t-xumpk-  of  MaHflach)i%«>tt.t)  to 
{fame  a  constitution  of  Kcvvrnmcnt  antl  laws  for  thcmsi^iveB.'  In 
1630,  the  Earl  of  Warwick  obtained  from  the  Council  of  Ply- 
muuLh  a  patent  of  Die  land  upon  a  straight  line  near  the  sea* 
Khorc  towards  the  southwest,  west  and  by  south,  or  vest  from 
Narragnnset  Kivi>r  forty  leaguel^  a»  the  coast  lies,  towards  V'ir> 
ginia,  and  all  within  that  breadth  1o  the  South  8va.  In  March, 
1681,  the  liarl  of  Warwick  conveyed  the  same  to  Lord  Say  a»d 
Scale  and  othera.  In  April,  1635,*  the  damp  council  fi:ranted  the 
same  territory  to  the  Marquia  of  Hamilton.  Piotsession  under 
tite  title  of  Lord  Hay  and  H«alc  and  othoi-tt  wiu)  taken  at  the  mouth 
of  th«  Conntx-'ticut  in  115X5.*  The  aettlem  there  were  not,  how- 
erer,  disturl>ed;  and  finally,  in  U>44,  they  extinguished  tbe  title 
of  the  pro]>rietartcB,  or  loidii,  and  continued  to  act  under  the  cun- 
MitutioD  of  government  which  they  had  framed  in  1(188.  By  that 
constitution,  which  waa  framed  by  the  inhabitanta  of  the  thn:« 
towns  of  Windsor,  Hartford,  and  Weathersficld,  il  waa  provided 
that  there  ahould  be  two  general  asacmbliea  annually;  that  there 
should  l>e  annually  elected,  by  the  friJemcn,  at  the  court  in  April, 
a  governor  and  aix  aflsistanta,  who  should  "  hare  power  to  admin- 
later  justice  according  to  the  law  here  established,  and  for  want 

I  1  Hutck  Hi«L  H, »  :  S  ilukti.  Htol.  MS  1 1  Hu.  CslL  331 ;  I  HoIbm**  Aaad^ 
nt,  SSS,  m.  333;  VI,  an;  l  Chdn.  A&iuIi,  S»S,  287,  28>  i  1  Doug.  Sttiain.  lU, 
t&:  t  Hatck.  Hut.  104. 

TV  tutntuiot  oT  thvt  frmnM  ot  goTcniBiMit  li  finn  in  I  Holm'*  Aiuub,  S51  ;  knd 
>  tnll  «ot>7  in  1  Hot.  Cull.  497.  *i\. 

•  i  Hnlchu  HiM.  303i  1  SUt.  Coll.  318i  1   Holmu'*  iRMb,   SMj  1  CUai. 

■  1  Oultk.  Anadir  ttS.  389,  300,  »00;  3  Hotoli.  Kiit.  SOS:  1  lUi.  Coll.  S95.  «H( 
I  HolMn'a  AdmIi,  930;  1  Hutch.  Hi*L  it;  1  Wuitkrap'i  Jour.  170,  8B7i  Hutck. 
CiU.  413,  IIS. 


58 


HISTORY  OK  THE  COVOKtfS. 


[SOOK  I. 


Uicrcof  according  to  the  rule  of  tlie  Word  of  Ood."  And  that  aa 
many  other  oiHcers  should  be  chosen  aa  might  be  found  requisite.* 
To  the  G«neral  Cnui-t  each  of  the  abore-oamed  toims  was  cnti* 
tied  to  send  four  deputies;  and  other  towns,  which  should  be 
afterwards  formed,  were  to  scad  ao  many  deputies  as  the  Gen- 
eral Court  should  judgd  meet,  according  to  the  iip[>ortio?unont 
of  the  freemen  in  the  town.  All  {>cr8ous,  nho  wore  inliabilants 
and  freemen,  and  who  took  the  oath  of  fidelity,  were  entitled  to 
vote  in  the  elections.  Ciiurch-membcrsliip  was  not,  as  iu  Massa- 
chusetts, an  indispensable  qualifieatioiL  The  supreme  power, 
legislative,  executive,  and  judicial,  ww  vested  iu  the  General 
Co»irt.* 

§  85.  The  colony  of  New  Haven  had  a  separate  origin,  and  was 
settled  by  emigrants  immediately  from  England,  without  any 
title  derived  from  the  patentees.  They  began  their  settlement  Iu 
\iiSH,  purchasing  their  lands  of  the  natives,  ajid  entered  into  a 
solemn  compael  of  government.'  By  it  no  person  was  admitted 
to  any  ofiiee,  or  to  have  any  voice  at  any  election,  unless  he 
a  membvr  of  one  of  the  churches  allowed  in  the  dominion.  Thcr 
was  an  annual  election  of  the  governor,  the  deputy,  magistrates,! 
and  other  ofTicers,  by  the  freemen.  The  General  Court  consisted 
of  the  goveniur,  deputy,  magistrate*,  and  two  deputies  from  each 
plantation ; '  and  was  declared  to  be  "  the  supreme  power,  under 
God,  of  this  independent  dominion,"  and  had  authority  **to  de- 
clare, publish,  and  establish  tlto  laws  of  God,  the  Supreme  Le- 
gislator, and  to  make  and  repeal  orders  for  smaller  uuitters,  not 
particularly  determined  in  Scripture,  according  to  the  general 
ruli'«  of  riglitcousness ;  to  order  all  affairs  of  war  and  peace,  and 
all  matters  relative  to  the  defending  or  fortifying  the  country;'^ 
to  receive  and  determine  all  appeals,  civil  or  criminal,  from  any 
inferior  courts,  in  which  they  are  to  proceed  according  to  Script- 
ure light,  and  laws,  and  ordera  agreeing  tJjerewith.'''  Other 
courts  were  provided  for;  and  Ilutchinson  observes  that  their 
laws  and  proceedings  varied  in  very  few  circumstances  from 
Hassacbusctts,  except  that  tbey  had  no  jury,  either  in  civil  or 


>  1  Hu.  Coll.  t37i  1  KalivM't  AbimI*.  tSl.  *  JMA. 

•  I  Butcb.  Hint.  (■%   S3;  I  Kulmn'*  Anadt  S4t,  ttt;  1    Cbalm.  Aaittb  MO;, 
RobtrtaMi'*  AuKtiM,  B.  10^  S  Annicw)  Uuatas^  S33. 

•  »  AmmIcui  UiiHPra,  S13. 

•  1  Unlcti.  Hltl.  83,  not*. 


ca.  Tir.] 


OOmiBCTIOOT, 


59 


criminal  cases.  All  nuUers  of  facts  were  (letcrmined  bjr  the 
court' 

§  8*!.  Soon  ftft«r  ihe  restoration  of  Chnrlc«  tlie  Sccoml  to  the 
throne,  the  colony  of  Connecticut,  aware  of  the  douUful  iiaturo 
of  its  title  to  the  exercise  of  sovereignty,  solicited,  and  iu  April, 
lt(ti2,  obtained  from  that  monarch  a  charter  of  government  and 
territory.'  The  charter  included  within  ittt  limits  the  whole  col- 
ony of  New  Uaven;  and  ait  this  was  done  without  the  conwut  of 
the  latter,  reBistance  was  made  to  the  incorporation  until  ltKi5, 
when  both  were  indiftsolubly  united,  and  have  ever  since  remained 
under  one  f!oncral  m>vernment.* 

§  87.  The  charter  of  Coimecticut,  which  has  been  objected  to 
by  Chalmers  ait  establishing  *'a  mere  democracy,  or  rule  of  the 
jH-'opU',"  cunluined,  indeed,  a  very  ample  grant  of  privileges. 
It  incorporated  tlio  inhabitants  by  the  name  of  the  Governor  and 
Company  of  tJic  Colony  of  Connecticut  in  Now  England  in  Amer- 
ica. It  ordained  that  two  general  assemblies  shall  be  annually 
held ;  and  that  tlie  assembly  shall  consist  of  a  governor,  deputy- 
governor,  twelve  awistants,  and  two  deputies  from  every  town 
or  city,  to  be  chosen  by  the  freemen  (the  charter  numinattng 
the  lirat  governor  and  assistants)^  The  general  oeaembly  had 
authority  to  appoint  judicatories,  make  freemen,  elect  oflicera, 
establish  laws  und  ordinances  "not  contrary  to  the  laws  of  this 
realm  of  England, "  to  punish  offences  "  according  to  the  course  of 
other  corporations  within  this  our  kingdom  of  England,"  to  as- 
semble the  inliabitunis  in  martial  array  for  the  common  defence, 
and  to  exercise  martial  law  in  coses  of  necessity.  The  lands 
were  to  be  holdeu  as  of  llie  manor  of  East  Oreenwich,  in  free 
and  common  soeagl^  The  inhabitants  and  tlieir  children  born 
there  were  to  enjoy  and  possess  all  the  liberties  and  immunities 
of  free^  naturul-bom  subjects,  in  the  same  manner  aa  if  born 
within  the  realm.  The  riglit  of  general  fishery  on  the  coasts 
waa  reserrcd  to  all  subjects;  and  finally  the  territory  bounded 
ou  the  east  by  the  Narrngnnsct  River,  where  it  fails  into  the  sea, 
and  on  the  north  by  Massachusetts,  and  on  the  south  by  the  sea, 


•  1  Hntoh.  HM.  81.  mtei  1  Clwlai.  AmmU.  SM. 

•  1  Uu.  CoU.  &Hi  ]  Ch*ba.  AiihIi,  10*.  »3i  1  Hofaii«'a  Anatli^  tSO;  S  Dmi^ 
Bmiin.  l«t. 

•  I  tUlmtTt  AnatK  888;  1  Cbthn.  AmmIi,  SM;  lf«nk.  OdIm.  I84i  1  Chain. 
AbmIi,  »1;  i  I>oag.  Suinn.  ISI.  IKT. 


60 


BrSTORY  or  TBB  COLONIES. 


[MOKl. 


uvl  in  loQgitwle,  as  the  liii«  of  the  Massachusetts  colon/  nin- 
ning  from  east  to  west,  thnt  from  Narraganset  Bsy  to  tbe  Soulh 
ScM,  WM  granted  and  confirmed  to  the  colony.'  The  charter  in 
silent  in  regard  to  religious  riglitH  and  privileges. 

§  88.  In  1G85,  a  quo  warranto  wait  issued  by  King  James 
against  the  colony  for  the  repeat  of  the  charter.  No  judgment 
appears  to  hare  been  rendered  upon  it;  but  the  colony  offered  its 
sobtntssion  to  the  will  of  ttie  crown;  and  Sir  Edmund  Andros, 
in  1687,  wont  to  Hnrlford,  and  in  the  name  of  the  crown  declared 
the  government  dissolred.*  They  did  not,  hnwever,  surrender 
the  eliart^-r;  but  secreted  it  in  an  oak,  which  is  still  venerated; 
and  immediately  after  the  revolution  of  ltt88,  they  resumed  the 
excreisc  of  all  its  powers.  The  siiecessoi-s  of  thi*  Ktnarts  silently 
sulTcred  them  to  retain  it  imtil  tlic  Ameriejin  lievolutiun,  with- 
out any  struggle  or  resistance.'  The  charter  continued  to  be 
maintained  as  a  fundamental  law  of  the  State,  until  tlie  year 
1818,  when  a  new  cunittitution  of  government  was  frmnied  aud 
adopted  by  the  people^ 

§  81*.  The  laws  of  Connecticut  were,  in  many  respects,  similar 
to  those  of  MassachuBetts.*  At  an  early  period  after  the  charter 
they  passed  an  act  which  may  be  deemed  a  bill  of  rights.  By 
it.  It  was  declared  that  "no  man's  life  shall  be  taken  away;  no 
man's  honor  or  good  name  shall  be  stained ;  no  man's  person  shall 
be  arrested,  restrained,  banished,  disnieniliered,  uor  any  ways 
punished;  no  man  shall  be  deprived  of  his  wife  or  children;  no 
man's  goods  or  estate  shall  Itc  taken  away  from  him,  nor  any 
way  endangered  under  color  of  law,  or  cotmtenance  of  aufJiority, 
unlesa  it  be  by  virtue  or  equity  of  some  exjiress  law  of  this  col> 
ony,  warranting  the  Bame,  established  by  the  General  Court  and 
suflicipntly  published ;  or  in  case  of  the  defects  uf  a  law  in  any 
particular  case,  by  some  clear  and  plain  rule  of  the  Word  of 
(rod,  in  which  the  whole  court  shall  concur."*  Thu  trial  by 
jury,  in  civil  and  erituinal  oasca,  WW  also  secured;  and  if  the 

■  S  Ilu.  CdL  0»7  ta  «U;  1  H<ihD«s'>  Annili^  320;  1  Cta\m.  Ana»]»,  m,  Ytt; 
Uanb.  Cokm.  di.  B,  p.  IS*. 

*  I  IMnw*'*  AnE«l^  IIS,  til,  4211,  U3:  1  CtuOni.  Aaiub,  »T.  SM.  Ml,  SH 
MS ;  I  Hutcb.  Iliit.  U»,  40S.  uota. 

*  ItM. 

*  «  Davit.  Sunnt.  ITl  to  17<^  lOS  to  Ml 

*  Cttlony  La<r>  of  OaanMiknl,  aditioa  by  Oimbi^  tTtS-ITlS,  roUo  (Ke«  LtudoBj, 
p.1. 


CH.  TIl.J 


OOHHBCTHin. 


61 


court  were  diaBatisJied  wiUi  the  verdict,  they  might  send  back  the 
jurjr  to  consider  Uio  samo  a  second  and  third  time,  bat  not  fur- 
ther.^ The  go\-cmor  waB  t«  be  ctioacn,  as  the  charter  provided, 
by  the  freemen.  Every  town  was  to  send  one  or  two  deputies  or 
rGprcsontatiws  to  the  General  Assembly;  but  every  freeman  was 
to  give  his  voice  in  the  election  of  assistantt;  and  other  public 
ofticem.'  No  person  was  entitled  to  be  made  a  freeman,  nnlefts 
Itc  owned  l3n<bi  in  fi'eehold  of  forty  shillings'  vahie  per  annum, 
or  £40  personal  estate.' 

§  90.  In  rpBppct  to  nffonoes,  their  criminal  code  proceeded  upon 
the  same  general  foundation  as  that  of  Max.'uirhuHelts,  declaring 
liose  capital  which  were  so  declared  in  the  Holy  Soriptnres,  and 
citing  them  as  authority  for  this  purpose.  Among  the  capital 
ofTences  were  idolatry,  hlaaphemy  of  Falhor,  Son,  or  Holy  Ghost, 
witchcraft,  murder,  murder  through  guile  hy  jtoisoning  or  other 
devilish  practices,  bestiality,  uodomy,  rape,  man-stealintf,  false 
witness,  conspiracy  a^inat  the  colony,  arson,  children  cursing 
or  smiting  father  or  mother,  being  a  stubborn  or  rebellious  son, 
and  treafl4>n.^ 

§  91.  In  respect  to  religious  oonoerna,  their  laws  provided  that 
all  persons  should  attend  public  worship,  and  that  the  towns 
should  sup)>ort  and  pay  the  ministers  of  religion.  And  at  first 
the  choice  of  the  minister  was  confided  to  the  major  part  of  the 
householders  of  the  town;  the  church,  as  such,  having  nothing 
to  do  with  the  choice.  But  in  1708,  an  act  was  p«a«cd  (doubt- 
less by  the  iulluence  of  the  elci^),  by  which  the  choice  of  minis- 
ters U'as  vested  in  the  inhabitants  of  the  town  who  were  ohureh- 
members ;  and  the  same  year  the  celebrated  platform  at  Saybrook 
was  approved,  which  has  continued  down  to  our  day  to  regulal« 
in  discipline  and  in  doctrine  the  ecclesiastical  concerns  of  the 
State.' 

S  92.  The  spirit  of  toleration  was  not  more  liberal  here  than 
in  most  of  the  other  colonies.     No  persons  were  allowed  to  em< 


'  Colee;  Law*  of  Ccmwcticiit,  edition  bj  Oraene,  ITIS-ITIS.  Mb  (Saw  LandMi), 
f>.  Z.    The  pnMtk*  wetiniiH]  d«<ra  to  Um  ertibUitLineDt  of  tho  aew  coartitMioa  is 

1S18. 

*  Colony  Un  of  CtmiMctlciit,  •dition  bj  Gmiw,  I71I>-1"18,  toUo  (N(w  I^nioii), 

p^  V.  aa 

*  M.  p.  (I.  «  Id.  p.  IS. 

*  U.  pp.  Mt  St.  U,  no,  lit.    Tha  CoMtllatloa  of  IBIS  hM  aide  agMt  dMafi 
btlwi%Iil«uMlpaw«nel  Di*  mlalilcH  aod  jpviilM  la  tOcMuUMl  •Sdn. 


68 


HISTORY  OP  TBB  COLONIffi. 


[BOOK  I. 


body  tbeoMelves  into  church  estate  without  the  conMnt  of  the 
QeDora)  As)i«mbly,  and  tlic  approbutioo  of  the  nci^ihoring 
chiirchos;  and  no  iniiiifttry  or  church  adiiij  Hint  ration  wae  enter- 
tained or  aut]iori7«d  separate  from,  uiid  in  opposition  to,  that 
openly  and  publicly  observed  and  dispensed  hy  the  approved 
miniRter  of  the  place,  except  with  the  approbation  and  consent 
aforesaid.'  Quakers,  Ranters,  Adamites,  and  other  notorious 
heretics  (as  they  were  called),  were  to  be  committed  to  pritwn 
or  aont  out  6f  the  colony,  by  order  of  the  governor  and  assist- 
ftnts.'  Nor  does  tho  z«al  of  |)«rsecution  appear  at  all  to  have 
abated  until,  in  pui-suance  of  the  statutes  of  1  William  and 
Mary,  dissenters  were  allowed  tho  liberty  of  conscience  withont 
molcfltation.* 

§  98,  In  respect  to  real  estate,  the  descent  and  distribution 
was  directed  to  bo  among  all  the  children,  giving  the  eldest  son 
a  double  ahan.- ;  conveyancps  in  fraud  of  creditors  were  declared 
void ;  lauds  were  made  liable  to  be  set  off  to  creditors  on  execu- 
tion by  tlic  appraisement  of  tlirce  appraisers.* 

Tlie  process  in  courts  of  justice'  was  required  to  be  in  the 
name  of  tJie  reigning  king.'  Persons  having  no  estate  mif^it 
bo  relieved  from  imprisonment  by  two  sssistsnts ;  but  if  tho  cred- 
itor required  it,  he  should  satisfy  the  debt  by  service"  Deposi- 
tions were  allowed  as  evidence  in  civil  suits.'  No  person  was 
permitted  to  plead  in  behalf  of  anotlier  person  on  trial  for  delin- 
quency,  except  directly  to  matter  of  law,*  a  provision  somewhat 
singular  in  our  annals,  though  in  entire  conformity  to  the  Kng- 
lish  law  in  capital  felonies.  Hills  and  honds  were  made  as< 
signable,  and  suits  allowed  in  the  name  of  the  assignees.' 

Msgistrntes,  justices  of  tho  peace,  and  ministers  were  aotbor- 
iiied  to  marry  persons;  and  divorces  a  vinctUi>  allowed  for  adul- 
tery, fraudulent  contract,  or  desertion  for  three  years.  Men  and 
women,  having  a  husband  or  wife  in  foreign  parts,  were  not  al- 
lowed to  abide  in  the  colony,  so  separat«<l,  above  two  years, 
without  liberty  from  tho  General  Court. 

Towns  worn  required  to  support  public  schools  under  regnla- 

1  (Mmj  Iawi  of  Conn.,  edition  bjr  Oimd*,  171S-1718,  folk)  (How  LoadoB), 
p.». 

•  li  p.  K.  I  H.  p.  IM. 

•  l>l.  pp.  SS.  fl.  IM.  *  Id.  ^  i1. 

•  I'i.  p. «.  » ld.^  IIS. 

•  Id.  p.  39.  »  H.  p.  J. 


CH.  til]  CONNECTICUT.  68 

tiona  similar,  for  the  most  part,  to  those  of  Massachusetts ; '  aod 
an  especial  maritime  code  was  emicted,  regulating  tiie  rights  and 
duties  and  authorities  of  ship-owners,  seamen,  and  others  con- 
cerned in  navigation.' 

Such  are  the  principal  provisions  of  the  colonial  legislation  of 
Conneeticat. 

>  Colooj  Lkwi  of  Coimeeticat,  edition  b;  Oreenr,  171&-I71S,  folio  (Sew  London), 
T>.  81. 

)  Id.  p.  70.    A  dntitu  code  exirtcd  in  Ha««kc)iiuetta,  enacted  in  IWS. 


64 


EISTOBT  OP  TQE  COLONtBS. 


[book  I. 


CHAPTER  Via 


RHODB  RLAKD. 


§  9i.  Rhodb  Island  waa  originally  BOttlcd  by  cmi^T&tite  from 
MaasachuHfiltfl,  flceiQR  tliithcr  ti>  cflca|>c  fruiu  rolifpou8  persecu- 
tion; and  it  alill  buantii  uf  Ru)rcr  Willisins  as  its  founder,  and 
aA  the  early  defender  of  religious  freedom  and  thn  rights  of  con- 
science. One  body  of  tlioin  purctiascd  the  inland  which  has  f^iven 
the  name  to  the  Slate,  and  another  the  territory  of  tho  Provi- 
dence Plantationa  from  the  Indians,  and  began  their  aettlementa 
in  both  piaoc«  nearly  nt  the  game  period,  namely,  in  l<iS6  and 
16S8.>  They  entered  into  »«parat«  voluntary  associations  of 
government  But  finding  Uteir  associations  not  snfhcient  to  pro- 
tect t}iem  against  the  encroachments  of  llassachusetts,  and  hav> 
ing  no  title  under  any  of  the  royal  patents,  tliey  nent  Roger 
Williams  to  England  in  1643  to  procure  a  surer  foundation  both 
of  title  and  government.  He  succeeded  in  obtaining  from  tlio 
Earl  of  Warwick  (in  16-13)  a  charter  of  incorporation  of  I'rovi. 
denoe  riantations;'  and  also,  in  lt>-14,  a  charter  from  tlio  two 
houses  of  Parliamout  (Charles  the  First  being  then  driven  from 
hia  capital)  for  th«  incorjwration  of  the  tovms  of  Providence, 
Newport,  and  Portsmouth,  for  the  absolute  government  of  them- ' 
aclvea,  but  according  to  the  laws  ol  England.* (a) 

§  95,  Under  this  charter  ao  osBcmbly  was  convened  in  164T, 
consisting  of  the  collective  freemen  of  the  various  plantations.* 
The  legislative  power  was  vested  in  a  court  of  oommissior 


I  1  HutcK.  HUL  72;  1  Helwcs's  Animl«.  S3S,  333.  tMi  1  rktln.  Anaab.  SMl' 
S70;  HulclL  CcJL  <IS,  414.  415;  Xinh.  Coba.  c^  3.  jv  V9.  IM;  iohirtmm't 
JUnrtica,  B.  10;  »  TtvoK.  Swnm.  74  t*  M:  1  Pftkia'i  Hut.  it.  Mi.  ClwlBMa 
np,  that  ProvfdnM  «M  MtUid  In  Um  bcgiBBug  at  1<U;  ud  Dr.  Iloim^ia  JSS6.J 
(1  CWIm.  Aamai,  ffO;  I  Rohda'a  Anaah,  OS.) 

>  1  RuUli.  Hill.  5».  BOO:  Wikh't  AppMl,  IM:  1  Pitk.  Hut.  U,  47.  49;  t  Doi^j 

SSHMl  Ml 

•  1  OwUn.  S71,  371;  tlirick  OdIL  415,  tlS. 

4  1  CbOm.  AumK  373;  1  llatoMta  A»aJ»  Ht;  VaU't  Aff^  Itt:  t  0«^ , 
OuMnk  MK 

(a)  1  B.LBiit.BM.lM;  AnoU,  Hfac  «ntb«lt  bksd.  I.  114.100, 


ca.  VIII.] 


RHODE  ISLAND, 


«6 


of  six  persona,  cliosen  bv  each  of  tho  four  towns  then  in  exist- 
ence. The  whole  executive  power  Menu  W  huvo  been  rested  iu 
a  prpHidcnt  and  four  assistant,  who  were  choeen  from  the  free- 
men, and  foniied  the  supreme  court  for  tlie  ndiiiinistratioD  of 
jufltioc  Every  township,  forming  wilhin  it«t>lf  a  curporatiou, 
elected  a  coimcil  of  »ix  for  the  maiingement  of  its  pveuliur  affairv, 
and  for  the  acttlcment  of  the  sintollcitt  dispiit^^.'  The  council  of 
Htute  of  tlie  C»nimonwealth  8oon  afterwards  interfered  to  suspend 
their  government;  but  the  distractions  at  home  prevented  any 
Hcrimis  interference  by  Farlianient  in  the  admiiiist ration  of  their 

^affairs;  and  they  continued  to  act  under  their  former  govern- 
ent  until  tlie  restoration  of  Charles  the  Second.*    That  erent 

^eema  to  have  given  great  satisfaction  to  these  plantations,  lliey 
immediately  proclaimed  the  king,  and  sent  an  agent  to  Kngland; 
and  in  July,  160S,  after  some  opposition,  they  succeeded  in  ob- 
taining a  charter  from  the  crown.*  (a) 

§  96.  That  charter  incorporated  the  inhabitants  by  the  name 
of  tlie  Governor  and  Company  of  the  English  Colony  of  Rhode 
Island  and  Providence  Plantations  in  New  England  in  America, 
nferring  on  them  the  usual  powers  of  cor|)orations.  The  ex- 
itivo  power  was  lodged  in  a  governor,  deputy-governor,  and 
ten  assistants,  chosen  by  the  freemen.*  The  supreme  legislative 
authority  was  vested  in  a  General  Aasemblj,  consisting  of  a 
governor,  doputy-gorcmor,  ten  assislanta,  and  deputies  froii)  the 
resijective  towns,  oboaen  by  the  freemen  (six  for  Newport,  font 
for  Providence,  Portsmouth,  and  Warwick,  and  two  for  oUier 
towns),  t)ie  governor  or  deputy  and  six  assistants  being  always 
present.  The  General  Assembly  were  authorixed  to  admit  free- 
men,  choose  officers,  make  laws  and  ordinances,  so  as  that  they 
were  "not  contrary  and  repugnant  unto,  but  as  near  aa  may  be 
agreeable  to,  the  laws  of  thia  our  realm  of  England,  considering 
the  nature  and  constitution  of  the  place  and  people;  to  create 
and  organize  courts;  to  punish  offences  according  to  the  course 
of  other  corporations  in  England ; "  to  array  tho  martial  force  of 
the  colony  for  tlte  common  defence,  and  enforce  martial'law;  and 

■  1  CWm.  AaiuU,  273:  t  Holmi^*  Aniul*,  S83. 

■  I  Chalm.  AmimU,  274;  1  Holiiift-i  Aimib,  SDTi  Uahk  Colo*,  di.  S.  p.  ISS. 

■  1  dwlm.  Adb^i,  tJi;  I  Holmisi  Anoals.  ZVt. 
*  S  ilaa.  CoU.  (IS  to  833;  1  Doug.  Somm.  81. 

M  AraM,  HIK.  of  Rliod*  Itluul,  L  SW  i  Ptlfttr.  But  of  Ha«  EsglMid,  It.  MJ. 

VOL.  I.  —  8 


HIRTORT  OP  TUB  COLOSllS. 


[book  I. 


to  oxcrcise  other  important  powora  and  prcrogativeo.  It  further 
providiNl  for  a  free  finhenr  on  the  cossta ;  and  that  all  tho  inhabi- 
tants and  children  born  there  should  vnju}'  all  th»  liberties  and 
tmiiiuiiitieft  of  free  and  natural  subjects  born  within  tho  ruulm 
of  England.  It  then  granted  and  confirmed  unto  (hem  all  that 
part  oi  the  king's  dominions  in  New  England  containing  thi- 
NorraganRct  Bay  and  the  countries  and  partM  adjacent,  bounded 
westerly  to  the  middle  of  Pawcatuck  River,  and  so  along  the 
river  northward  to  thu  Jteaii  thereof,  tlii:ne«  by  a  straight  line 
due  north,  until  it  meet  tho  south  lino  of  )Ius«achii«elts,  extend- 
ing easterly  three  Knglish  miles  to  the  mo«l  ^^astcrn  and  north- 
eoAtern  parts  of  Narmgansot  Bay,  as  tho  bay  cxt«Dded  soutberlj 
nnto  the  mouth  of  th«  river  ruiutiog  towards  Providence,  and 
thence  along  tlio  easterly  side  or  bank  of  Uic  tiaid  river  up  to  the 
falls,  rallLKl  Patuckot  Falls,  and  thence  in  a  straiglit  line  due 
north  (ill  it  rnvvtn  the  Mossaehusctta  line.^  The  territory  wuy 
to  be  huldcii  (u  of  the  manor  of  East  Greenwich  in  free  and  com- 
mon socage.  It  further  secured  a  free  trade  with  all  tbe  other 
colonies. 

§  97.  But  the  most  remarkable  circumBtanee  in  the  oharter, 
and  that  which  exhibits  tlie  strung  feeling  and  spirit  of  the  col- 
ony, is  ihe  provision  respecting  rvligious  freedom.  Th«  charter, 
after  n.-«tttng  tlio  petition  of  the  inlisbitaots,  '^that  it  is  much 
in  their  hearts  (if  they  be  permitted)  to  hold  forth  a  lively  experi- 
ment that  a  most  flourishing  civil  state  may  stand,  and  be  best 
maintained,  and  that  among  our  English  subjects.  vi(A  a  /uli 
Ubtrtif  in  ntigiau*  cwwatfWiwf*,  and  that  true  piety,  rightly 
grounded  upon  gospe)  prtuejples,  will  giro  the  best  and  greatest 
Mourity  lo  sovereignty,"  proceeds  to  declare:*  "We  being  will- 
ing to  encourage  the  hopeful  undertaking  of  our  said  loyal 
loving  subjc^ta,  and  to  secure  them  in  the  free  exercise  and 
joynirnt  c>f  all  thoir  cinl  and  reltgioun  ri^ts  appertaining  to^ 
them  as  our  loving  subJM-ta.  and  to  preserre  to  them  thai  liberty 
in  the  trno  Christian  faith  and  worship  of  God,  which  they  bai 
MM^  with  BO  much  travail,  and  with  peaosfnl  mitida  and  lojra 
lobjection  to  our  royal  progenitors  and  oorselrcs  to  enjoy; 


ink  b  th»  iiiMii  I  htt  M(ite«iMi«M**riWb>Mau«>nia* 

■Uck  y  ginm  •!  lu^  ittlHaa.O)D.«Stoai,nite  Bhod*  bUnd  Im^  i 
rfinSuiillflSS. 
>  a  Hafc  G>a.  US. 


CH.  Tin.] 


RHODE  ISLAND. 


67 


bcN'AUKc  8ome  of  lite  people  uid  inhabitants  of  the  same  colony 
cannot,  in  their  priratc  opinion,  confonn  to  the  public  vxcrciBc 
ef  religiOTi  according  to  the  liturgy,  form,  and  ceremonies  of  the 
Church  of  England,  or  take  or  niibftcrilw  the  oaths  and  articlee 
made  and  eRtabliiihe<I  in  that  Mialf;  and  for  that  the  aamc,  by 
reaaoo  of  the  remote  diatanoen  of  theae  plares,  will,  aa  we  hope, 
be  no  breach  of  the  nnity  and  uniformity  pRtablished  in  this  na- 
tion, have  therefore  thoug^ht  tit^  and  do  hereby  publish,  grant, 
ordain,  and  declare  that  our  royal  will  and  pleagure  is,  that  no 
penoH  wr'Mm  the  taiJ  colony,  at  any  time  hereafter,  thall  hf 
tmjfin*f  moleited,  puniihed,  ditquiettd,  or  ealied  in  qutatioH  for 
«Ky  difffreae.es  m  opinion  in  ntattera  of  religioH ;  but  that  alt  and 
'  ptr»on  and  pertont  miiy.  from  time  to  time  and  at  all  time 
Broafter,  freelg  and/ully  hare  and  et^og  hi$  and  their  oiPHjud^- 
nunt  and  eonxdenees  in  mattera  o/rditfiou*  eonrerntnent  ibroughoat 
the  tntrt  of  land  hereafter  mentioned,  they  behaving  themsclven 
peacciibly  and  ()iiietly,  not  using  this  liberty  to  licentiouiuiesB 
tnd  profani'ncKs.  nor  to  the  civil  injury  or  outward  disturbance 
of  others. "'(d)     Tliis  is  a  noble  doolaration,  end  worthy  of  any 

^prince  who  rules  over  a  freo  people.     It  is  latncntablu  to  rclloct 

ow  little  it  comports  with  the  domestic  persecutions  authorized 

Ihfl  aante  monarch  during  his  profligate  reign.     It  is  still 

'more  lamentable  to  reScct  how  little  a  similar  spirit  oi  tolera- 
tion wa»  encouraged  either  by  the  precepts  or  examples  of  any 
other  <rf  the  New  England  colonies. 

§  9S.  Rhode  Island  enjoys  the  honor  of  having  been.  If  not 
the  first,  at  least  one  of  the  earliest  of  the  colonics,  and  indeed 
of  modern  .States,  in  which  the  liberty  of  conscience  and  freedom 
of  worship  were  boldly  proclaimeil  among  it*  fundamental  laws.* 
If  at  any  time  afterwards  the  .Slate  broke  in  tipi>n  the  broad  and 
rational  principles  thus  established,  it  n-as  but  a  momentary  de- 
viation from  (he  «ettlfd  eoiirni'  <tf  it^  jwilicy.*  At  the  present  day, 
acting  under  thi8  very  charter  it  continues  to  maintain  religious 
freedom  with  all  the  sincerity  and  liberality  and  Keal  which  be- 
iged  to  its  founder.  It  haa  been  supposed,  that  in  the  laws 
I  by  the  General  Assembly  first  convened  under  this  charter. 


<  3  Ilni.  ColL  SIS.  •  Walah'*  An<Ml.  tSt. 

•  Hotob.  CoU.  413.  tU;  I  Chihn.  AnuU.  !;«.  3S1:  1  HolraHTt  AamCi,  3SS. 

{>J  AtMU,  HiM.  cf  BtMi)«  Utud,  I.  W!. 


68 


BISTORT  OP  THE  COLOKIES. 


[book  I. 


(1044),  Roman  Cntholics  were  excluded  from  the  pririlegos  of 
frMmen,  But  this  hits  been  very  juatlj-  doubted ;  and,  indeed,  if 
well  founded,  the  act  would  deserve  all  the  reproach  which  has 
been  heaped  upon  it.'  The  first  laws,  however,  diMilared  that  no 
froeinaii  shall  be  imprisoned  or  deprived  of  his  freehold,  but  by 
tho  judgment  of  his  peers  or  the  laws  of  tlte  colony ;  and  that  no 
tax  should  be  imposed  or  required  of  the  colooists,  but  by  the 
act  of  the  General  Aasvmbly.' 

$  99.  It  is  said  that  the  ^'nural  conduct  of  Khodc  Island  si'vnis 
to  have  given  entire  satisfuctiun  to  Charles  the  Second  during  thu 
residue  of  his  ix.Mgu.^  L'puu  the  accession  of  James  the  iidiabi- 
tants  were  amon^  the  first  to  offer  their  congratulations,  and  to 
ask  protection  for  their  chartered  rights.  That  monarch,  how- 
BTor,  disregarded  their  riMjueAt.  They  were  accused  of  a  viola* 
Uon  oi  tbeir  charter,  and  a  quo  warranto  was  filed  against  them. 
Tliey  immediately  resolved,  witliout  much  hesitation,  not  to  con- 
tend with  the  crown,  but  to  surrender  Uteir  charter,  and  pusaed 
an  act  fur  that  purpose  which  was  afterwards  suppressed.*  In 
Decenilier,  1(586,  Sir  Edmund  Andres,  agreeably  to  his  orders, 
disaolvcd  their  government,  and  assumed  the  administration  of 
the  colony.  I1te  Ilevoluliun  of  1688  put  an  end  to  his  power; 
and  the  colony  immediately  afterwards  resumed  its  charter,  and, 
though  not  witliout  some  interruptions,  continued  to  mnintutn  and 
exercise  its  powers  down  to  the  period  of  the  American  Revolu- 
tion.^ It  sliil  continue*  to  act  under  the  same  charter,  as  a  fun- 
damental law,  it  Iteing  the  only  State  in  tlio  Union  which  has  not 
formed  a  new  constitution  of  government  It  seems,  that  unlJI 
the  year  1696,  tJie  governor,  assistants,  and  deputies  of  the  towns 
sat  together;  but  by  a  law  then  passed  they  were  separated,  and 
tlic  deputies  acted  as  a  lower  house,  and  the  governor  and  assist- 
ants as  an  upper  house.* 


1  On  tkii  Mfajwt,  u*  1  ClulniMs'i  Anult,  37S,  tU;  aad  Dr.  HoImm's  vdnaUe 
mu  10  hi*  Akiwl*^  *ot  i.  p.  334^  tad  U.  ^  Ml;  Hattk.  CoIL  411,  US;  WaUi'a 
Appnl  4S9  to  (39. 

■  1  Chain.  AuMb,  ITS:  1  Robne*'*  Auafa,  S3<i  B.  bksdColoD;  Un  (1744), 

•  I  Chilm.  A&mK  !78. 

•  1  Cbilm.  AsnaU,  2M,  38t:  S  Dong.  Sdiiiib.  SS. 

•  1  rawlm.  A^IMl^  nt,  ST*  I  1  HolMM'a  Asiiab.  41»,  4a»,  iSS.  4(3;  9  Doog. 
Ssnun.  ti.  37*1  Dvnnet'*  Dsfono*,  1  AsMrieui  Tnc«^  7. 

•  a.  liked  0*>ini7  Un  {ITU),  Si. 


CH.  Till.] 


BnODK   I8LAM0. 


69 


$  100.  In  reviewini;  th«  colonial  Icf^islation  of  Bhode  Island 
Rone  pecaliartticfl  are  diflcumibk-,  tJiuuirh  tho  funeral  Hjstem  is 
like  thut  of  the  othvr  partit  uf  New  England.'  No  penoiu  bat 
thoKC  wlio  were  Admitted  (rceinen  of  the  culoiiy  wvrv  allowed  to 
vote  at  tilcctioae,  tuid  tiwy  might  do  it  in  per»on  or  by  prosy; 
and  none  but  freemen  were  eligible  to  office.  WIHs  of  real  ca- 
t*te  were  required  to  have  three  witnetwwfj.  The  pn>batc  of  will* 
and  the  granting  of  administrations  of  {lentonnl  estate  were  com- 
mitted to  the  jurisdiction  of  the  town  councils  of  each  town  in 
the  colony,  with  an  appeal  to  the  governor  and  cotmcil  na  an- 
preme  ordinary.*  Every  town  was  a  corj«irate  body,  entitled  to 
choa«e  its  officera,  and  to  admit  pei-aona  aa  fn^men.*  Sports 
and  lahor  on  Sunday  were  prohibited,*  Puivhases  of  land  from 
the  Indiana  were  prohibited.*  By  a  formal  enartment,  in  1700, 
it  was  declared,  that  in  all  actions,  matters,  causes,  and  tilings 
whataoever,  where  no  [fsrtieular  law  of  the  colony  ia  made  to  de- 
cide and  detennine  the  same,  then  in  alt  such  cases  the  lawa  of 
tSogland  shall  be  put  in  force  to  issue,  doterroine,  and  decide  the 
aamv,  any  usage,  custom,  or  law  to  the  contrary  notwithstand- 
ing.* About  the  aamc  period  the  KngHxh  navigation  laws  were 
required,  by  an  act  of  the  colonial  legislature,  to  bo  executed.' 
Twenty  years'  peaceful  possession  of  lands,  under  the  claim  of  a 
title  in  fee-simple,  was  declared  to  give  a  good  and  rightful  title 
to  the  foe;^  and  thus  a  juat  and  liberal  effect  waa  given  to  the 
statnto  of  limitations,  not  as  a  bar  of  the  remedy,  but  of  the 
right  Tlie  acknowledgment  and  registration  of  conveyances  of 
lands  in  a  public  town  registry  were  provided  for.  The  support 
of  tlie  ministry  was  made  to  depend  upon  free  contributions. 
Appeals  to  the  king  in  council,  in  cases  exceeding  X800  in 
value,  were  allowed.*  A  system  of  redress,  in  cases  of  abuses 
of  property  devoted  to  charitable  uses,  waa  established;"*  fines 
and  common  recoveries  were  regulated;  and  the  trial  by  jury 
established.  The  criminal  code  was  not  sanguinary-  in  its  enact- 
ments; and  did  not  affect  to  follow  tlie  punishments  denounced 
in  the  .'vripture  atrainst  particular  offences."  Witchcraft,  how- 
ever, was,   as  in  the  common  law,  punished  with  death.     At  a 


t  K.  Iikad  CoL  I^wi  (1744),  pp.  I,  147. 
>  14.  p^».  Md.  IS. 

■  I>L  38.  '  Id.  tt. 

*  liL  ST.  ISS.  w  u.  loa. 


■  Id.  p.  1,  4. 

•  Id.  *. 

•  M.  44. 

■■  Id.  lis. 


TO 


BISJOBY  or  TUB  COLOMEa. 


[book  I. 


lttt«r  period,  lantU  of  peraonii  lif-ing  out  of  the  colony  or  conceal- 
ing themnelres  therein  were  made  liable  to  the  papneut  of  their 
debts.)  In  reepect  to  Uie  deooent  i>f  real  estates,  the  canons  of 
the  common  law  were  adopted,  and  the  eldest  son  took  the  whole 
inheritance  by  primof^vuiture.  This  systvm  was  for  u  short 
period  repealed  by  an  act  (4  A  5  Georeo  I.,  1718)  which  diridod 
the  rstatc  umon^  uH  the  children,  giving  the  eld«8t  son  •  doublo 
sliaro.'  But  tbe  common  law  was  soon  ofterwanls  (in  1728)  re- 
instated  by  tlic  public  approtxition,  and  so  remained  to  rcgukt« 
descents  until  a,  short  period  (1770)  before  the  BevolutioiL  Con- 
tracts for  things  ulwve  the  value  of  ten  pounds  were  required  to 
be  in  writing;  and  conveyances  in  fraud  of  creditors  were  de- 
clared roid.  And  we  may  aUo  trace  in  its  legiitlalion  pr<:iWsion 
respecting  hue  and  cry  in  cases  of  robbery;  and  of  forfeiture  in 
cases  of  KOcidenUtI  death,  by  way  of  deodand.* 

§  101.  We  have  now  finished  our  review  of  all  tlie  sueceseivo 
colonics  CHtahlishcd  in  Now  Kngland.  The  remark  of  Chalinera'j 
is  in  general  well  founded.  "Oripnally  settled,'*  wye  he,*  "bjr  J 
the  same  kind  of  people-,  a  similar  policy  naturally  rooted  in  all 
the  colonies  of  New  England,  llieir  fonns  of  goremment,  their 
laws,  their  courts  of  justice,  their  manners,  and  their  religious 
toneta,  which  gave  birth  to  all  thcso,  were  nearly  the  same." 
Still,  ho«-cver,  the  remark  ia  subject  to  many  local  qualifica- 
tions. In  Rhode  Island,  for  instance,  the  rigid  spirit  of  Puri- 
tanism softened  don'u  (as  we  have  seen)  into  general  toleration. 
On  the  otiier  band,  the  common-law  rules  of  descents  were  ad- 
hered to  in  its  policy  with  singular  xeal,  down  to  the  year  1770, 
as  necessary  to  prevent  the  destmction  of  f ami  ly  estates,  whi  le  the 
neighlxiring  colonies  adopted  a  rule  dividing  the  inheritance 
among  all  the  children.' 

§  102.  One  of  the  most  memorable  circnmstances  in  the  his- 
tory of  Xow  England  is  the  early  formation  and  establinhment  of 
a  oonfcderntion  of  the  colonics  for  amity,  offence  and  defence, 
and  mutual  advict^  and  assistance.  The  proj(>ct  was  agitated  as 
early  as  IGUl;  but  difficulties  having  occurred,  the  articles  ol 


1  K.  UUwl  CoL  Un  a;4l\  p.  193. 

*  OalMj  lam  of  Rhode  Idud  (edU.  171«.  prutad  at  OoaUm),  fip,M,H. 

*  K.  UUad  Ookor  I«»  (HIV),  pp.  t,  8. 

*  1  Cbalm.  Atamlt,  SMl 

»  QudMt  K  caHaa,  S  Patcn'i  Sup.  Ct.  Ibip.  U. 


CH.  nil.] 


BHODB   ISLAKD. 


•n 


.unioD  wen  not  finally  adopted  until  1643.'(4i)  In  the  month  of 
tU&y  of  that  year,  tbo  colcmies  of  Maeaoohusctte,  Connecticut, 
New  Haven,  and  i*lymoiith  fonned  a  confederacy  by  the  natne 
of  the  United  Colonics  of  New  Enjiland,  and  entered  into  a  per- 
petual leagDe  of  friendship  and  amity,  for  ofFencn  and  defence, 
and  mutual  udvice  and  succor.  The  chained  of  all  want,  offeii- 
aivf  and  defL-asivc,  were  to  be  borne  in  conunon,  and  according  to 
an  apportion ment  provided  for  In  the  articles;  and  in  caae  of 
iuvasiun  of  any  colony,  tbo  utbera  were  to  fumiab  a  certain  pro- 
porliuii  of  armed  men  for  ita  aKsistancc*  Commissioners,  ap- 
pointed by  each  colony,  wcro  to  meet  and  dctcnninc  all  affairs  of 
war  and  peace,  leuji^uca,  aids,  charges.  At:,,  and  to  frame  and 
catabliab  ogrt-emenUi  and  orders  for  otlier  gvncrul  intercsto. 
This  uniou.  ao  imjiortant  and  necessary  for  mutual  derciicc  and 
OMistanoc  during  the  troubles  which  then  agitated  the  parent 
^Dountry,  was  not  ol)ject4xl  to  by  Kin^  Charles  the  Second,  on  his 
Btoration;  aod  with  some  few  alterations,  it  subsisted  down  to 
1686,  when  all  the  charters  were  prostrated  by  the  authority  of 
Kin^  Jamo».*  Rhode  Island  made  application  to  be  admitted 
into  this  union,  but  was  refused,  upon  the  ground  that  the  terri- 
tory was  within  the  limits  of  Plymouth  colony.  It  does  not 
appear  that  subsequently  the  colony  became  a  party  to  it*  (6) 


>  I  HolniM'i  Ann*bv  U9.  STO;  1  Winthrop*  Jour.  SS7,  28i. 

•  3  Ilu.  Ce-IL  1  to  «;  3  Winttiro|>*>  Jour.  101  to  lOS;  1  Hatch.  IIM.  lit,  IH. 

•  1   Holnw'*  Annali,  S70  and  natei  1   Hnl«k.  Blit.  I3S,  aole;  9  11a.  CoU.  7, 

•  1  Holmo'i  Anuti,  £87  ud  note;  1  Hutch.  U>«t.  IM;  2  Hat.  Coll.  »,  100. 

(«)  ftitnj,  HUL  of  K«w  Fn|cIui<I,  I.      «i>il  it*  njcetia«u«  giren  in  Hutch.  CoU. 
«aO.  S24,  217. 

It)  Th«  «{>f  Uauwa  of  Eliodc  UmuI 


72 


nisTonr  o?  tbr  colokigs. 


[•OOK  I. 


CHAPTER  IX. 


HARYLAHD. 


)8.  The  proriocc  ofMaryland  waa  included  originally  in 
the  pat«nt  of  th«  Southern  or  Virginia  Company ;  and  upon  the 
diMolution  of  that  company  it  reverted  to  the  crown.  King 
Charles  the  FirHt,  on  the  20th  Juno,  1632,  granted  it  by  patent 
to  Cceiliua  Calvert,  Lord  Baltimore,  tht-  son  of  George  Calvert, 
Lord  Baltimore,  to  whom  the  patent  w«a  intended  to  hiive  been 
made,  but  he  died  before  it  wa»  executed.'  By  tlie  ehurtor  the 
king  erected  it  into  a  Province,  and  gave  it  the  name  of  Horjr- 
tand,  in  honor  of  his  quei-n,  HvnrieUa  Maria,  the  daughter  of 
Ilenry  the  Fourth  of  Franev,  to  be  held  of  the  crown  of  England, 
he  yearly,  forever,  rendering  two  Indian  arrovra.  The  territory 
was  bounded  by  a  right  line  drawn  from  Watkin'a  Point,  on 
Chesapeake  Bajy  to  the  ocean  ou  the  east,  thence  to  that  part  of 
thu  estuary  of  Delaware  ou  the  north  which  Heth  under  the  4(Hh 
degree,  where  New  England  is  tenninatcd;  thence  in  a  ri)^t 
line,  by  the  degree  aforesaid,  to  the  meridian  of  the  fotmtain  of 
Potonuu:;  thence  following  its  course  by  the  farther  bank  to  its 
confluence  with  the  Chesapeake;  and  thence  to  Watlcin's  Point' 
§  104.  llie  territory  thus  severed  from  Virginia  was  made 
immiMliately  subject  to  the  crown,  and  was  granli^  in  full  and 
absolute  propriety  to  Lord  Baltimore  and  his  heii-8,  saving  Ihu 
allegianco  and  sovereign  dominion  to  the  crown,  with  all  the 
rights,  regalities,  and  prerogatives,  which  the  Bishop  of  Purhain 
enjoyed  in  that  palatinate,  to  be  held  of  the  crown  m  of  Windsor 
Cantle,  in  the  county  of  Berks,  in  free  and  common  socage,  and 
uotineapite,  or  by  knight 'it  service.  The  charter  further  pro- 
vided that  the  proprietary  should  have  authority,  by  and  with  tbo 
consent  uf  the  freemen,  or  their  delegates  osscmbk-d  for  th«  pur- 
pose, to  make  all  laws  for  the  province,  "so  tliat  such  laws  be 

)  1  HoImm'i  Atib.  21S  :  1  CluJni.  AaaaK  901.  MS;  Bmmb'i  U««  «f  MurlM4 
(llti):  S  DoQg,  Samm.  SSS,  Ac. 

*1  lUt.  CoO.  t3rtoSa7iiaiiliD.Aiuuli^S0SiCliut«narK.  &.ProTJMe^«ak 
Loniiui,  17M. 


CH.  IZ.] 


MARYLAND. 


78 


consonant  to  reason,  and  not  repugnant  or  contrary,  but  u  fur 
u  coBvenicntly  oiijzht  be,  agreeable  to  the  laws,  etutut«K,  cus- 
tonu,  and  riglitii  uf  this  oiir  realm  of  England."'  The  pro- 
prietary was  also  vc«ted  with  full  executive  power;  and  the 
estublishmunt  of  courts  of  justice  was  provided  for.  The  prupri- 
etary  was  also  authorized  to  levy  subsidicH,  with  the  asiient  of 
the  people  in  assembly.  The  inhabitants  and  tlieir  children 
wer«  to  enjoy  all  the  righta,  immunities,  and  privileges  of  sub- 
jecta  bom  in  England.  The  right  of  the  advowaons  of  the 
churches,  according  to  the  cstublishmcnt  of  England,  and  the 
ri^t  to  create  manors  and  courts  haron,  to  confer  titles  of  dig- 
nity, to  erect  porta  and  other  regalities,  were  expressly  given 
to  the  proprietary.  An  exemption  of  the  colonists  from  all  tal- 
liages  on  their  goods  and  estates,  to  bo  imposed  by  the  crown,  was 
expressly  covooanted  for  in  perpetuity;  an  exemption  which 
hod  been  conferred  on  other  colonies  for  years  only.'  License 
was  grunted  to  all  subJL-cts  to  transport  tlicnu^ulvt's  to  (he  Pror- 
ioce ;  and  its  products  were  to  bo  imported  into  England  and  Ire- 
land, under  such  tAxca  only  as  were  paid  by  other  subjiH^tn.  And 
the  usual  powers  in  other  charters  to  repel  invasions,  to  sup- 
press rebellions,  Ac,  were  also  conferred  on  the  proprietary. 

§  105.  Such  is  the  sulistance  of  the  patent.  And  Chalmers 
has  with  some  pride  asaertcd  that  "Siaryland  has  always  en- 
joyed the  unrivalled  honor  of  being  the  first  colony  which  was 
erected  into  a  Province  of  the  Gnglish  Empire  and  governed  reg- 
ularly by  laws  enacted  in  a  provincial  legislature."'  It  is  also 
observable  that  there  is  no  clause  in  the  patent  which  required 
any  transniisaion  of  the  province  laws  to  the  king,  or  providing 
for  his  approbation  or  assent  Under  this  charter  Maryland  con- 
tinued to  be  governed,  with  some  short  intervals  of  interruption, 
down  to  the  period  of  the  American  Revolution,  by  the  successors 
of  the  original  proprietary.* 

§  106.  The  first  cmi^rration  made  tmder  the  auspices  of  Lord 
Baltimore  was  in  Kovombcr,  1682^  and  consisted  of  abuiit  two 
hundred  gcntlL-men  of  cousiderablo  fortune  and  rank,  and  their 
adherents,  being  chiefly  Roman  Catholics.  "  He  laiil  the  founda- 
tion of  this  province,"  says  Chalmers,'  "upon  the  brood  basis  of 

■  ]  Hai.  C»n.  SI7.  Ac;  1  Clulni.  Aansl^  Mt :  Hinb.  folon.  di.  9,  p^  ««. 

■  1  Cbalnun'i  Anaak,  £»,  104,  SOS.  ■  Id.  9W. 


74 


HISTORY  OP  ras  ooLoinra. 


[boos  t. 


Mcuritjr  to  propertj  and  o€  freedom  ot  reli^on,  graoting  in  &!>• 
solute  fee  &ftjr  acres  of  land  to  ererr  eroigrant;  estsbtiahiog 
Cbristianitj  ufrnM^bljr  to  the  old  conunoa  lav,  of  rbicb  it  ia  a 
part,  without  alluwiiig  pre-eminence  to  any  particular  sect.  The 
wisdom  of  bis  choice  suun  converted  a  drear}-  viidcrneas  into  a 
prosperous  colony."  It  is  certain!}'  vcnr  honorable  to  the  liber- 
ality and  public  spirit  of  tlie  proprictarv,  that  he  should  have  in- 
troduced into  his  foiidainental  policy  the  doctrine  of  general 
lolcralion  and  e((uality  among  Christian  sects  {for  he  does'  not 
appear  to  hare  gone  further);  and  have  thus  given  the  earliest  ex* 
ample  of  a  Icgiiilator  inviting  his  anbjects  to  tlie  free  indulgcnoe 
of  religious  opinion.*  This  was  anterior  to  the  settlonent  of 
Rhode  Island :  and  therefore  merits  the  enviable  rank  (rf  being 
the  first  r«co^ition  among  the  colonists  of  the  glorious  and 
indefeasible  rights  of  conscience.  Rhode  Island  seems,  without 
any  apparent  consciouiinetis  of  co-operation,  to  have  gtnie  further, 
and  to  have  protected  an  universal  freedom  of  religious  opiuiim 
in  Jew  and  Gentile,  in  Christian  and  Pagan,  without  any  dis- 
tinction to  be  foond  in  its  le^slation.' 

§  107.    The  Tirst  legislative  assembly  of  Uaryland,  held  by  tJw 
trevmen  at  large,  was  in  1634-16S5 ;  but  little  of  their  proceed- ' 
ingB  is  knuwn.     No  acts  appear  to  hare  been  adopted  until  1688-  ! 
1639,  (a)  when  provision  was  made,  in  consequence  of  an  increase 
of  the  colonists,  for  a  rcprtmcntative  assembly,  called  the  House 
of  Assembly,  cliosen  by  the  freemen ;  and  thu  laws  passcNl  by  the 
assembly,  snd  approved  by  the  proprietary  or  his  lioutenant,  were 
to  be  of  full  force.     Tlic  assembly  was  afterwards  divided  into  an 
upper  and  lower  house.     At  the  same  ses^ou,  an  act,  which  may 
be  considcn-id  as  in  some  sort  a  Magna  Charts,  was  passed,  de- 
claring, among  other  things,   that  "Holy  Church  within  this- 
provinoe  shall  hare  all  her  rights  and  prerogatives;"  "that  the 
inhabitants  shall  have  all  their  rights  and  liberties  according  to 
the  great  charter  of  England ; "  and  that  the  goods  of  debtors, 

•  1  ChUn.  AnnU*.  ttS,  21S,  Sl«,  363. 

(a)  That  b  to  nj,  noM  ware  J^nad 
■pan  b;r  the  imtmVj  uid  th»  pwptiitoty; 
but  MU  kpFM*  la  hKrc  bMa  i«mm1  I17 
tbe  uannUy  whkk  wmt  T*j*cUil  hj  tbe 
pn>pri«toi7,  uri  othna  «mv  profNMd  bj 
itM  ptofiieUiy  whkh  th*  ■acfnUr  tf- 
AiMd  to  aaofC    Sm  Btmntm,  Hntof;  of 


■  TV«U]'*  ApfMl.  4X9.  (Tota  B. 

IbiylwML  S*Sw  MW-31S.     Tkfa  aMlwrl 
ooa)«etaw^  ttasgh  tbi  neofd*  tm  MlaM 
on  Uw  antofct,  tluit  Ui*  dittMlt)^  btiviwn 
tti*  fnfhtUrj  tttd  the  ■nunibly  «w  tlMt 
neh«fai»d  lb*  ri^  M  Trrijlast-  Ihi 


CIL  IX.] 


HaRYLAKD. 


75 


if  not  sufficient  to  pay  tbeir  dcbte,  fthall  l>o  sold  and  distributed 
pro  rata,  saving  dvbis  to  tho  proprietary.'  In  IG49  an  net  wa« 
poued,  puiiixhiiif;  blnsplioui^*  or  denying  the  Holy  Trinity  witli 
dcutti  Biid  eoiiriMcatioQ  of  goods  and  laudti;*  and,  strangely 
unuuffh  after  sucti  a  provision,  in  the  same  act,  after  a  preamble, 
reciting  that  tliv  cvnfining  of  conHcience  in  matters  of  rcli^on 
ball)  frequently  fallen  onC  to  lie  of  daugeroua  «)nse<)urnce,  it  is 
•'niicted  that  no  pei-son  "professing  to  beliere  in  Jesua  Christ" 
lihall  he  molested  for  or  in  respect  to  his  religion,  or  the  free 
exercise  thereof,  nor  any  way  i;omi)elled  to  the  belief  or  exercine 
of  any  other  religion.*  It  seema  nut  tu  have  been  even  imagined 
that  a  belief  in  tike  divine  mission  of  Jesus  Christ  could,  in  the 
eyes  of  any  »e<:t  of  Christians,  hv  (piite  coiiHisti^nt  with  tho  de- 
nial of  the  Trinity.  Thia  act  vraii  vunfirmt-d  among  tho  perpetual 
taws  in  1676. 

§  108.  The  legislation  of  Maryland  does  not,  indeed,  appear 
to  have  afforded  an  uniform  protection  in  respect  to  religion, 
such  as  the  original  policy  of  the  founder  would  seem  to  indicate. 
Under  the  protectorate  of  Cromwell,  Roman  Catholics  wore  ex- 
pressly denied  any  protection  in  the  Province;  and  all  others, 
"who  profess  faith  in  God  by  Jesua  Christ,  though  differing  in 
judgment  from  the  doctrine,  worship,  or  discipline  publicly  held 
forth,"  were  not  to  be  restrained  from  the  exercise  of  their  reli- 
gion.' In  1696  tho  Church  of  England  was  established  in  tho 
province;  and  in  1702,  the  liturgy  and  rites  and  ceremonies  of 
the  Church  of  England  were  required  t«  b«  pursued  in  all  the 
churches,  with  such  toleration  fur  dissentcra,  however,  as  was 
provided  for  in  tltc  act  of  1  William  and  Mary.*  And  the  in- 
troduction of  the  test  and  abjuration  acta,  in  1716,  excluded  all 
Roman  Catlioli<.-s  from  office." 

§  109.  It  appears  to  have  been  a  policy  adopted  at  no  great 
distance  ot  time  after  tho  ecttleniont  of  tJie  colony  to  provide  for 

■  BtMm'R  U««  ot  MtryUnd,  cL  3,  of  1838;  1400,  ch.  1;  1  Manti.  CoUwi.  ftc 
ck.  I,  ^  7S;  1  Chsliu.  AnnalB,  313.  SIP.  SSO.  23&. 

■  1  Chalm.  Aniwk  ao.  MS:  Daixni'i  L*n  of  Harykod.  1«49. 

•  BuuD**  Uw»  «f  M.t7l«iul.  1849,  eh.  I;  1  Chuliii.  A>in>J\  S18,  £16.  2M. 

•  BoMiii'a  Un  of  Uuybnc^  l<M,  cli.  I;  Htnh.  Colon,  cb.  S.  p.  73;  Cbabn. 
Ana.  21S,  S3S. 

•  B»Mn'i  Um  ot  HinrUnd.  ITOS.  ch.  1. 

•  B«on-i  Uw  <t  MujrUnd,  17M,  di.  f;  Vkbh't  Appwl,  4»,  »;  1  nobam't  An- 
arit,  179,  t8». 


76  HISTOBT  Of  TSE  COLONIES.  [BOOK  I. 

the  public  registration  of  conveyances  of  real  estates.^  In  the 
silence  of  the  Bt8tut«-book  until  1716,  it  is  to  be  presumed  that 
the  system  of  descento  of  intestate  estates  vas  that  of  the  parent 
country.  In  that  year  an  act  passed,'  which  made  the  estate 
partible  among  all  the  children;  and  the  system  thus  intro- 
duced has,  in  its  substance,  never  since  been  departed  from. 
Uaryland,  too,  like  the  other  colonies,  was  early  alive  to  the 
importauce  of  possessing  the  sole  power  of  internal  taxation ; 
and  accordingly,  in  1650,'  it  was  declared  that  no  taxes  should 
be  levied  without  the  consent  of  the  general  assembly. 

§  110.  Upon  the  Bevolntion  of  1688,  the  government  of  Mary- 
land was  seized  into  the  hands  of  the  crown,  and  was  not  again 
restored  to  the  proprietary  until  1716.  From  that  period  no 
interruption  occurred  until  the  American  Revolutioo.* 

1  Bacon'*  Lawi  of  Mujrluid,  IB74. 

*  Baoin'i  Uw«  of  UnjUnd.  iriS,  eh.  W. 

*  Bacon's  Uwb  of  Uiryland,  1860,  cb.  2S;  1  Cbalm.  Ann.  12a 

*  BwiOD'i  Um  of  HaijUnd,  1SS8, 1716. 


CH.  X.] 


KEW    TOKS. 


77 


CHAPTER  X. 


NEW    TOBK. 


§  111.  New  York  waa  oriKiu&Hy  settled  by  emigrants  from 
HutlaDd,  at  \east  as  t-arly  ns  1614.'  Tradtn^-liuuscs  were  estab- 
lished on  Hanhattau  Iitland  by  Uicm,  uudor  tlic  auspicee  uf  the 
Dutch  We«t  India  Company,  about  1621.'  But  ihe  permanent 
establishment  of  a  Dutch  colony  there  docs  not  appear  to  have 
been  fixed  until  about  lti29,  when  it  seems  to  hare  acquired  the 
[name  of  the  Now  Nctberlands.*  But  the  English  government 
[seems  at  all  times  to  baTO  disputed  the  right  of  the  Dutch  to 
make  any  settlement  in  America;  and  the  territory  occupied  by 
them  waa  unquestionably  within  the  chartered  limita  of  New 
England  granted  to  the  council  of  Plymouth.*  Charles  the  Sec- 
ond, soon  after  his  restoration,  instigated  as  much  by  personal 
antipathy  as  by  a  regard  for  the  interest  of  the  crown,  deter- 
mined to  maintain  his  right,  and  in  March,  1664,  granted  a  pat- 
ent to  his  brother,  the  Duke  of  York  and  Albany,  by  which  he 
conveyed  to  him  the  region  extending  from  the  weateni  Xmak  of 
tlie  Connecticut  to  the  eastern  shore  of  the  Delaware,  together 
with  Long  Island,  and  conferred  on  bim  the  powers  of  govern- 
ment, civil  and  military.^  Authority  was  given,  among  other 
things,  to  correct^  punish,  pardon,  govern,  nnd  rule  all  subjects 
that  should  inhabit  the  territory,  according  '"  such  laws,  ordi- 
nances, A'c.,  as  the  Duke  sliuuld  establisli,  so  always  that  the 
fltme  "  were  not  contrary,  but  n«  near  as  might  be  agreeable  to 
the  Iau-8  and  statutes  and  (rovcriuiient  of  the  realm  of  England," 
saving  to  the  crowu  a  right  to  hear  and  determine  all  appeals. 
The  nsual  authority  was  also  given  to  use  and  exercise  martial 
law  in  cases  of  rebellion,  insurrection,  mutiny,  and  invasion.* 

>  1  Cbalman'*  Ano«U.  Ml,  KS,  *  Id.  S70.  ■  Ibid. 

•  1  CiMlnMs'*  Juuait,  M8,  SSB,  B7l\  671;  UHih.  Cttko.  <h.  5,  ii.  143;  1  Dwig. 
SoBun.  SSO,  kc 

•  8ndtti'«  y»w  Jmej.  IS,  fi9;  1  CWnNnTi  Aanal^  ITS;  SnHli'i  Kmr  Yotk.  p.  » 
[10]:  flmitli'i  Mew  Jtnaj.  ff.  110  to  IIS. 

■  I  ctrpy  ttrm  th*  r*clul  ot  il  In  Scnith'm  HlMcty  «f  H««  3*n»j,  In  Ota  (umdw  of 
17M  of  tb*  proTtaoN  ofKut  and  Wtst  ientj. 


78 


BISTORT  OP  TQE  COLOStES. 


[BOOK  I. 


A  part  of  this  tract  vns  attcnrards  conveyed  by  the  Duke,  by 
de«tl  of  leaae  and  rc1c««c,  in  June  of  Uic  some  year,  to  Lord 
Berkeley  und  Sir  George  Carleret  By  (lii»  ktter  grant  they 
were  entitled  to  all  the  tract  adjoocnt  to  New  {ihigiand,  lying 
westward  of  Long  Island  and  boimded  on  the  east  by  the  main 
8ca  and  partly  by  Hudson's  River,  and  upon  the  west  by  Dela- 
ware Bay  or  Kiver,  and  extending  southward  to  the  main  ocean 
as  far  as  Cape  May  at  the  month  of  Delaware  Bay,  and  to  the 
northward  as  far  a«  the  nortliernmost  branch  of  Delaware  Bay  or 
River,  which  is  41  degnx^s  40  minutes  latitude:  which  tract  was 
to  be  called  by  the  nante  of  Nova  Ciesaroa,  or  New  Jersey.'  So 
that  the  territory  then  claimed  by  the  Dutch  as  the  New  Nether- 
lands was  divided  into  the  colonies  of  New  York  and  New  Jersey. 

§  112.  In  September,  1664,  the  Dutch  colony  was  suqtriacd  by 
a  British  armament  which  arrived  on  the  coast,  and  was  com- 
pelled to  surrender  to  its  authority.  By  the  terms  of  the  capit- 
ulation the  inhabitants  were  to  continnc  free  denizens  and  to 
enjoy  their  property.  The  Dutch  inhabitanta  were  to  enjoy  the 
liberty  of  their  conscience  in  divine  worship  and  church  disci- 
pline, and  their  own  customs  concerning  their  inheritances.' 
Tbo  government  was  instantly  assumed  by  right  of  conquest  in 
behalf  of  the  Duke  of  York,  the  proprietary,  and  th«  territory 
was  called  New  York.  Lilierty  of  conacioncc  was  granted  to  all 
acMlers.  No  laws  contrary  to  those  of  England  were  allowed; 
and  taxes  wprp  to  be  levied  by  anthority  of  a  general  aaaerably.' 
llie  peace  of  Breda,  in  1667,  confirmed  the  title  in  the  conquer* 
ors  by  the  rule  of  vtipomdetu.*  In  the  succeeding  Dutch  war 
the  colony  wa,i  reconquered ;  but  it  was  restored  to  the  Dnke  of 
York  upon  the  succeeding  peace  of  1674.* 

§  lis.  As  the  validity  of  the  original  grant  to  the  Duke  of 
York,  while  the  Dutch  were  in  quiet  possession  of  the  country, 
was  deemed  questionable,  be  thouglit  it  prudent  to  nsk,  and  be 
accordingly  obtained,  a  new  grant  from  the  crown  in  June,  1674.* 
It  confirmed  tlic  former  grant,  and  empowered  him  to  govern  the 

■  ScnIU)'*  N>w  Vork.  31.  82  [10,  nj:  1  Ctulwn'i  Ancibi,  CIS. 

*  flnritk'*  S'flW  Yorli.  41,  ti  [M,  SO);  I  ChdwoVt  Ann.  £74;  Siullli**  Saw  J*mj, 
M,  43.  il;  S  Dong.  Bumai.  ttS. 

*  1  ClulmeB'*  AnnaK  STS,  577.  UTS,  iVt;  Boith'*  N>«  Itnvj.  44.  48. 
«  1  C)uIiBtn>'»  Annali.  IJi ;  S  Dooff.  SouH.  133. 

*  1  ClialBim'*  Atiul*.  &79 ;  1  Hulmra'*  Inadi,  »4.  S44. 

*  Smitli-a  NV«  York.  «1  |»];  1  CUln.  AsmIi,  9TS>. 


CH.  X.] 


REW  TOBK. 


79 


inhabitants  bv  snch  oniinancps  iw  he  or  his  assigns  should  estab- 
lish. It  authorized  him  to  administer  justice  according  (o  the 
l»vr»  of  England,  allowing  an  appeal  to  the  king  in  cotini^il.*  It 
prohibited  trade  tliither  without  his  pemii»Rion;  and  aliovcd  the 
colonists  to  import  merchandise  upon  paying  cuatoms  according 
to  the  laws  of  the  reahn.  Undsr  this  charter  he  nited  the  Prov- 
ince until  his  accession  to  the  throne.'  No  general  assembly  was 
called  for  several  years ;  and  the  people  having  become  clamorous 
for  the  privileges  enjoyed  by  other  colonists,  the  governor  was, 
in  16t^2,  authorized  to  coll  an  assembly,  which  was  empowered 
to  make  laws  for  the  general  regulation  <A  tho  Stat*.',  which,  how- 
ever, were  of  no  force  without  the  ratification  of  the  proprietary.* 
Uiwn  the  Revolution  of  1688,  the  people  of  Now  York  immedi- 
ately took  side  in  favor  of  the  Prince  of  Orange*  From  this  era 
they  wen!  doemed  entitled  to  all  the  privilegea  of  British  sub- 
jecta,  inhabiting  a  dependent  province  of  the  state.  No  charter 
vas  Bubsoqucntly  granted  to  them  by  the  crown ;  and  therefore 
they  derived  no  peculiar  privileges  from  that  source.' 

§  114.  The  government  was  henceforth  administered  by  gover- 
nors appointed  by  tho  crown.  But  no  effort  was  made  to  conduct 
the  administration  without  tlie  aid  of  the  representatives  of  the 
pottle  in  general  assembly.  On  the  oontrary,  as  soon  as  the 
first  royal  governor  arrived  in  IfilH,  an  assembly  was  called 
which  passed  a  onmber  of  important  acts.  Among  others  was 
an  act  virtually  declaring  tlmir  right  of  representation,  and  their 
right  to  enjoy  the  liberiien  and  privileges  of  Englishmen  by 
lia^ft  Charta.*  It  enacted  that  the  supreme  legislative  power 
shall  forever  reside  in  a  governor  ond  council  appointed  by  the 
crown,  and  the  people  by  their  reprcsfulatives  (choseu  in  the 
manner  pointed  out  in  the  act)  ctMivcned  in  general  aaeembly. 
It  further  declared  that  all  lands  should  Ik!  held  ill  free  and  com- 
mon socage  according  to  tlie  tenure  of  East  Ureenwich  in  Eng- 


>  1  CUlam**  Anatli,  fi?t>,  SBO. 

*  1  Clubncn'*  Auotlt,  SSI,  iSt;  Snitk't  V*w  York,  133,  135,  1S«  [72.  76). 
I  CiMlni.  AsiMk  5S4.  Ki;  SKiUi'i  New  Yofk.  137  |7S];  1   HoUdm'i  AmwIi^ 

In  tlu  jmu  ins  ocrtain  finiduiiraul  icgoJatJoni  nm  [luKd  by  tbo  Icffislnlartv 
■Md  vtll  Ik  fmad  tit  ut  A^KOiliz  to  the  »Mxaid  Totiwa  «l  lb*  oM  aditioa  ol  tiM 
Kf  *  York  Law*. 

*  1  HoliDM'a  Anult.  139;  Swlth't  Stm  York,  SB. 

*  I  CUbi.  AniMli,  its.  SM.  »1,  S82. 

'  I  BolMt'a  Aaiuit,  «Ui  Soritk'*  New  York.  127  (7S>  7«] ;  Act*  «l  IMl. 


M 


BISTORT  OF  THE  COLaXlBS. 


[BOOK!. 


land ;  that  in  all  criminAl  owes  there  should  be  a  trial  by  jury; 
ttuit  c«tAt«8  of  femes  covert  should  bo  conveyed  only  by  deed 
upon  privy  examination;  that  wills  in  writing,  attested  by  three 
or  more  credible  witnesses,  should  be  sufHciont  to  pass  lands; 
tliat  there  should  be  no  fines  upon  alienations,  or  escheats  and 
forfeitnres  of  lands,  except  in  caaca  of  trvaaon;  that  no  person 
sliould  hold  any  oflice  unless  upon  his  appointment  he  would 
take  the  oaths  of  supremacy,  and  the  teat  prcoeribed  by  the  act 
of  Parliament;*  that  no  tax  or  talliugc  should  be  levied  but  by 
the  consent  of  the  general  assembly ;  and  that  no  ]>er8on  profess- 
ing  faith  in  Jrous  Christ  should  be  disturbed  or  qucstiontMl  for 
different  opinions  in  religion,  witli  an  exception  of  Roman  Cath- 
oliea.  The  act,  however,  wa»  repealed  by  King  William  in 
1697.*  Another  act  enabling  persons  who  were  scrupulous  of 
taking  oaths,  to  make  in  lieu  thereof  a  solemn  promise,  to  qualify 
tbcm  08  witnesses,  jurors,  and  oOicer».  In  the  year  1C>D3,  on  act 
was  passed  for  the  maiutcnance  of  miiiiatera  and  churches  of  the 
Protestant  religion.  New  York  {like  Massachusetts)  seemed  at 
all  times  determined  to  suppress  the  Romish  Church.  In  an  act 
passed  in  the  beginning  of  the  last  century  it  was  declared  that 
every  Jesuit  and  Popisli  priest  who  should  continue  in  the  colony 
after  a  given  day  should  be  condemned  to  perpetual  ImprisoD* 
ment;  and  if  he  broke  prison  or  escaped  and  was  retaken,  he  was 
to  be  put  to  death.  And  so  little  were  the  spirit  of  toleration 
and  the  rights  of  conscience  understood  at  a  much  later  period, 
that  one  of  her  historians '  a  half-century  afterwards  gave  this 
excluBi<m  the  warm  praise  of  being  worthy  of  prepetuat  duration. 
And  the  constitution  of  New  York,  of  1777,*  required  all  persons 
uatnralizod  by  the  State  to  take  on  oath  of  altjuration  of  all  for- 
eign allegiance,  and  subjection  in  all  matters,  eedetiaHieal  as 
well  OS  eiviL  This  was  doubtless  intended  to  exclude  all  Catho- 
lics, who  acknowledged  the  spiritual  supremacy  of  the  Pope, 
from  tlie  benefits  of  naturalization.*  In  examining  the  subse- 
quent legislation  of  the  Province,  there  do  not  appear  to  be  any 
very  striking  deviations  from  the  laws  of  England ;  and  the  com- 


■  ]  Holme*'*  Ataula.  4U;  Snltti'*  V*w  York,  137  CO,  76):  Pror.  L)w*«f  I«>I. 

*  I  Hotow*'*  Attiuh.  at;  PkMim  Un  o(  ie»li  SmiUi'a  Now  Vrnk.  IS7  [7«|i 
3  Kmt'*  Conn.  Lect-  SS.  pr^  ^  *>• 

*  Kr.  Soddi.  4  An.  12. 

*  9  Kmft  Cetam.  Led.  39,  pp.  S3,  OS. 


CH.  X.]  NEV  TORE.  81 

mon  law,  beyond  all  question,  waa  the  basis  of  its  jurisprudence. 
The  common-law  course  of  descents  appears  to  have  been  silently 
but  exclusively  followed;^  and  perhaps  New  York  was  more 
close  in  adoption  of  the  policy  and  legislation  of  the  parent  coun- 
try before  the  Revolution  than  any  other  colony. 

1  1  do  not  find  bd;  act  respecting  the  distribatioo  of  inteitats  Gstat«s  in  the 
stjttate-booli,  except  tliat  of  1987,  which  seema  to  have  in  view  ool;  the  distribution 
of  personal  estata  snbatantiaUj  on  the  basis  of  the  ftatnte  of  diitribntion  of  Charles 
the  Second. 


VOL.  1.  —  6 


82 


BISTOBT  OP  THE  OOLONIBS. 


[book  1. 


CHAPTER  XL 


NEW   JfflSET. 


§  115.  New  Jgbset,  as  v«  huvc  alrc*<Iy  seen,  was  a  part  of 
the  territory  ^n^anted  t«  tho  T)uke  of  York,  aad  was  bjr  him 
granted,  in  Juno,  16&4,  to  Lord  Berkeley  aud  Sir  George  Car- 
teret, with  all  (hi!  rights,  royalties,  and  powers  of  govenmicnt 
which  hv  himself  possessed.'  The  proprietors,  for  the  better  set- 
tlcmviit  of  tho  territory,  agreed  in  Fehniary,  1664-1C*>.5,  H|ion  a 
oorifitittitton  or  concession  of  g:overninent,  which  was  so  much 
relished  thnt  the  eiistem  part  of  the  prm-ince  soon  contained  a 
considerable  population.  By  this  conotitiiti'm  it  was  provide 
that  the  executive  government  should  be  administered  by  a  gov-1 
emor  and  council  who  should  have  the  appointment  of  officers; 
and  that  there  should  be  a  k^slative  or  general  asHembly,  to  bo 
composed  of  the  governor  and  council,  and  deputies  chosen  by 
the  people.  The  general  assembliee  were  to  hare  power  to  make 
alt  laws  for  tho  government  of  the  Province;,  so  that  "the  samei 
be  consonant  to  reason,  and  as  near  as  may  be  conveniently 
agreeable  to  the  lawa  and  customs  of  his  Majesty's  realm  of  Eng- 
land ; "  to  constitute  courts,  to  levy  taxes,  to  ereet  manors  and 
ports  and  incorporations.*  Tho  registry  of  title-deeds  of  land 
and  the  granting  thereof,  as  a  bounty  to  plantera,  were  also  pro- 
vided for.  Liberty  of  conscience  was  allowed,  and  a  frcvdom 
from  molestation  guaranteed  on  account  of  any  difference  in 
opiniun  or  practice  in  matters  of  religious  concernments,  so  al- 
ways that  tho  civil  peaoo  was  not  disturbed.  But  the  genenl  as- 
sembly were  to  be  at  liberty  to  ap)>o{nt  ministers  and  establish 
their  maintonunce,  giving  liberty  to  others  to  maintain  what 
ministers  they  pleased.  Every  inhabitant  was  bound  to  swear  or 
subscribe  allegiance  to  the  king;  and  the  general  assembly  mi^t 
grant  naturallzaticHi.* 

>  ItSwlM.  Ana.  ei>:  Smith'i  IT««  York.  f>.  Sl  [11]:  Smtlli')  K.  itrmj,  Mj,^ 
Huik  Cokm.  it;  h>  I«0  :  a  Doug.  Sunn,  tto^  ke.,  SSI.  347, 4e. 

*  SMltb'*  N««  Itnnj,  <  Appit.  611 )  1  Chalin.  AOBilt,  «U. 

•  Svlth'a  Sim  imtj.  51S,  iH. 


cu.  n.] 


NEW  JERBBT. 


83 


§  116.  Tbia  constitution  continued  until  the  Prorince  was  di* 
Tided,  in  1676,  between  the  proprietors.  By  tJiat  di^neion  Eaiit 
New  Jeniey  was  aMi)^cd  tu  Cart«rct,  and  West  New  Jersey  to 
William  Pvnn  and  otliore,  wlioliad  ptirchiwed  of  Lord  Berkeley.' 
Carteret  then  explained  and  cunfirmvd  tlie  furnicr  concessions  for 
the  territory  timn  exclusively  belonging  to  hinwelf.  The  propri- 
etors also  of  Wo»i  Jersey  drew  up  another  set  of  conceft8ioii«  for 
the  settlera  within  that  territory,  lliey  contain  wry  ample  priv- 
ileges to  the  peopla  It  was  declared  that  the  common  law,  or 
faodamental  rights  and  prinlegon  of  West  New  Jersey  therein 
■tftted,  are  to  be  the  foundation  of  government,  not  aherable  hy 
the  legislature.  Among  these  (luidamentals  were  the  following: 
"That  no  man,  nor  number  of  men  upon  earth,  hath  power  or 
authority  to  rule  over  men's  consciences  in  religious  matters; '"' 
that  no  person  shall  b«  anyways  called  in  question  or  in  the  least 
punished,  or  either,  for  the  sake  of  his  opinion,  judjjment,  faith, 
or  worship  towards  God  in  matters  of  religion;  that  there  shall 
be  ft  trial  by  jury  in  civil  and  criminal  cases;  that  there  shall  bo 
a  general  aiwembly  of  reprixicntatives  of  the  people,  who  shall 
have  power  to  provide  for  the  proper  administration  of  the  gov- 
ernment, and  to  make  laws,  so  **  that  the  same  be,  as  near  as  may 
be  conveniently,  agreeable  to  the  primitive^  ancient,  and  funda- 
mental laws  of  England."' 

§  117.  Whether  these  concessions  became  the  general  law  of 
the  Province  seems  involved  in  some  oViscurity.  There  were 
many  diflicullies  and  contests  for  jurisdiction  between  the  gov- 
ernor* of  the  Duke  of  York  and  tlie  proprietors  of  Uie  Jerseys; 
and  these  were  not  settled  until  after  the  Duke^  in  1R80,*  finally 
snrrendered  all  right  to  I»oth  by  letters-patent  granted  to  the  re- 
spective prt^rictors.*  In  1681,  the  governor  of  the  proprietor  of 
West  Jersey,  with  the  consent  of  the  general  assembly,  made  a 
frame  of  government  embracing  some  of  the  fundamentals  in  the 
former  concessions.*  There  were  to  Iw  a  governor  and  council, 
and  a  general  assembly  of  representatives  of  the  people.  Tlic 
general  assembly  had  tJie  power  to  make  taws,  to  levy  taxes,  and 


)  Smit])'-  Htm  Jmer.  CI.  TO.  SO.  B7  ;  I  Chdm.  Ana.  417. 

*  SmlUi'ii  Sv  Jentlj,  80,  App.  »1.  ie.  *  Idid. 
CfalBwra  Mjv  in  10SO,  ]>.  019.    Smith  oy*  in  KTB,  ^  111. 

*  9mitl>'«  Ntw  UiKj,  110,  111  ;  1  Chttm.  Ana.  <19,  «9«. 

*  SBulha  S»*  J«r»ey,  IM, 


84 


Bisronv  OP  ME  COLOKIES, 


[book  I. 


to  appoint  officorB.  Liberty  o(  coiwcicncc  van  allonrcd,  nml  no 
pentotu  rcudvred  incapable  of  office  in  reaped  uf  their  fuilh  uud 
worship.  West  Jersey  eontinued  to  be  governed  in  tliix  numoer 
until  the  surrender  uf  the  pruprictarj-  guvortiinent,  jn  1702.* 

§  118.  Can«rct  died  in  1079,  und  beinj^  the  sole  pruprietur  of 
Bast  Jersey,  byhix  will  he  ordered  it  to  be  sold  for  pftymeiit  of  his 
debts;  &nd  it  wus  Bcoordin^Iy  Hold  to  William  Penu  uud  eleven 
rtlbcrs,  who  wcro  called  the  Twelve  Propriiitors,  They  after- 
wards  took  twelve  moro  Into  tlic  proprieturysliip;  and  to  tho 
twcnty-fuur  thus  formed,  the  Duke  of  York,  In  March,  1682, 
made  his  third  and  lost  grant  of  East  Jersey.'  Very  serious 
dia«enaiuns  soon  arose  between  the  two  provinces  tliomselves,  as 
well  as  between  thorn  and  New  York,  whieh  banished  moderation 
from  their  councils,  and  tln-eatened  Uie  most  serious  calamilica. 
A  quo  warranto  was  ordered  by  the  crown,  in  168fi,  to  bo  issnod 
againnt  birth  prmince».  East  Jersey  inimediately  offered  to  be 
annexed  to  West  Jeraey,  and  to  submit  to  a  governor  appointed 
by  the  crown.  Soon  afterwanis  the  crown  ordered  the  Jerseys  to 
bo  annexed  to  New  En^^land ;  and  the  proprietora  of  Eaat  Jersey 
made  a  formal  surrender  of  its  p«tent,  praying  cmly  for  u  new 
grant,  securing  their  right  of  soil.  Before  tliia  request  could  be 
granted,  the  Borolution  of  1688  took  place,  and  they  passed 
under  the  ullopriaiicc  of  a  new  sovereign.* 

§  119.  From  this  jwriod  both  of  the  provinces  wore  in  a  great 
state  of  confusion  and  tlistraetion,  and  remained  so  until  tho 
proprietors  of  both  made  a  formal  surrender  of  all  their  powers 
of  guvcnunent,  but  not  of  their  laudii,  to  Queen  Anne,  in  April, 
1702.  The  ijuoen  immediately  reunited  both  provinces  into  one; 
and  by  commission  appointed  a  governor  over  it.  He  was  thereby 
authorized  to  goveru  with  the  assistance  of  a  council,  and  to  call 
general  assemblies  of  representatives  of  the  people  to  be  chosen 
by  the  fn^holilei-s,  who  were  required  to  take  the  oath  of  allegi- 
ance and  supremacy,  and  tho  tests  providwi  by  the  acts  of  Parlia- 
ment Tho  general  assembly,  witJ)  the  consent  of  the  governor 
and  council,  were  authorized  to  make  laws  uud  ordinances  for 
the  welfare  of  the  iwoplo  '*  not  repjignant,  but,  as  near  us  may  be, 
agreeable  tinto  the  laws  and  statutes  of  this  our  kingdom  of  Eng- 

'  Smith**  Nfw  Jtnej,  ICI. 

*  Smith'a  New  Jnuf,  1ST:  1  ClialiiMnr*  Aanat]^  CSO.  «21 ;  H»nlMll'aC(itaa.l80. 

>  1  CtwiH.  Aan.  til,  022 ;  Smith'*  Stm  lawej.  SD»,  SIO,  211,  ko. 


CH.  XI.]  .      NEW  JESBEt.  85 

land ; "  which  laws  were,  however,  to  be  subject  to  the  approba- 
tion or  dissent  of  the  crown.'  The  governor,  with  the  consent 
of  the  council,  was  to  erect  courts  of  justice,  to  appoint  judges 
and  other  officers,  to  collate  to  churches  and  benefices,  and  to 
command  the  military  force.  Liberty  of  conscience  was  allowed 
to  all  persons  but  Papists. 

§  120.  From  this  time  to  the  American  Revolution  the  Prov- 
ince was  governed  without  any  charter  under  royal  commlssiOnB, 
Bnl»tantially  in  the  manner  pointed  out  in  the  first  The  people 
always  strenuously  contended  for  the  rights  and  privileges  guar- 
anteed to  them  by  the  former  concessions ;  and  many  struggles 
occurred  from  time  to  time  between  their  representatives  and  the 
royal  governors  on  this  subject.' 

>  Smith's  Niw  Jtiaej,  220  to  230,  231  to  2S1. 

*  Smith'iNewJerMf,  ch.  14,Bi)(lparticulaTljp.  265,  Ju;.,  pp.2e9,  fcc.,276,  293,  S04: 

Bee  Arnold  r. ,  1  Holited's  Rep.  1,  u  to  the  right*  of  the  proprietariea  in  the  mU 

kR«r  tamnder  of  the  gorenmieiit  to  the  cniWD. 


M 


HISTOfiT  OP  TBB  COLONIES. 


[BOOCI, 


CHAPTER  XIL 


PENNsrLVANU. 


$  121.  PsHNsrLT^u  wu  oriinoally  settled  b;  different  de- 
tachmentH  of  planters,  under  Toriuui)  uutliorilii's,  Dutch,  Svedes, 
and  otlieni,  wliich  at  different  tiinon  occupied  portiuna  of  land  on 
South  or  Delaware  River.'  The  iweeuduuoy  van  linally  obtained 
over  thf»e  settlement*  by  the  governor*  of  New  York,  acting 
under  the  charter  of  l'Ht4,  to  the  Duke  of  York.  Chaluicr«, 
however,  doo«  not  scruple  to  aay,  that  "it  ia  a  sin^lar  circuin. 
ataiic«  in  the  hiatory  of  this  [then]  inconalderable  colony,  that 
it  seems  to  have  been  at  all  times  governed  by  iLturpera,  becauBO 
tlieir  titles  were  defective."*  It  continued  in  s  feeble  state  until 
tlie  celebrated  William  Penn,  in  March,  1681,  (Stained  &  patent 
from  Charlea  the  Second,  by  which  he  became  the  projirietaiy  of 
an  ample  territory  nhtch,  in  honor  of  his  father,  was  called 
Pennsylvania.  The  hmmdariea  doacribed  in  the  charter  were  on 
the  east,  by  Delaware  Kiver,  from  twelve  milea  distance  north- 
wards of  New  Castle  town  to  tlie  4Sd  degree  of  north  latitude,  if 
the  said  river  doth  extend  so  far  northward ;  but  if  not^  then  by 
said  river  so  far  as  it  doth  extend;  and  from  the  head  of  the  river 
tlie  eastern  bounds  arc  to  be  determined  by  a  mortdian  line,  to  bo 
drawn  from  the  head  of  said  river  unto  the  said  43d  desrco  of 
north  latitude.  The  said  lands  to  extend  westward  five  deKrccs 
in  lougitude,  to  be  computed  from  the  said  eastern  bounds,  and 
the  said  lands  to  be  bounded  on  the  north  by  the  beginning  of  the 
43d  degree  uf  north  latitude ;  and  on  the  south  by  a  oirole  drawn 
at  twelve  miles'  distance  from  New  Castle,  northward  and  we«t< 
ward,  to  the  l>eginning  uf  the  40th  degre«  uf  northern  latitude; 
and  then  by  a  straight  line  westward  to  the  limits  of  the  longi- 
tude above  mentioned.' 

§  132.   The  charter  constituted  Penn  the  true  and  absolute  pro- 

t  1  Chalin.  Auub.  SSO  to  e»4 :  Bi&lU>'«  Kew  Yotk.  [91]  M ;  I  Pnad,  Ftan.  UO, 
111,  ttl,  lit,  tl(,  lis,  UB.  ISS  ;  S  Dong.  Swmn.  S»7,  Ac 
*  1  Clwliii.  AduK  «•.  «»■ 
■  1  Prowl,  Pmb.  172. 


CH.  at.] 


PEHN8TLTAKIA. 


87 


[.pHctarjr  of  the  territory  thus  dc^crilwd  (saving  to  the  crowu  the 
l^orereignt)'  (A  the  country,  mid  thv  ftllcgi&nce  of  the  proprietary 
]and  the  inhabitants),  to  be  holdon  of  the  (.-rovn,  aa  of  the  caetlo 
of  Windsor,  in  Bc-rks,  in  free  and  common  nocage,  and  not  in 
capUe,  or  by  knight  sorvico;  and  erected  it  into  a  Pronnce  and 
seigniory  by  thu  nnme  of  PonoAylvania.     It  uuthoriitcd  the  propri- 
etary and  his  hcira  aiid  eucce88ora  to  make  all  lawa  for  raiMng 
money  and  oUicr  purpoees,  vith  the  aMcnt  of  the  freemen  of  the 
country,  or  th«ir  dejiutira  assembled  for  the  purpoiMs'     But  ''the 
aamc  laws  were  to  be  consonant  to  reason,  aiid  not  repugnant  or 
contrary,  but  as  near  as  conveniently  may  be,  agreeable  to  law 
['And  statutes  and  rights  of  this  oiir  kingdom  of  England."'    The 
[laws  for  the  descent  and  enjoyment  of  lands,  and  8ucc4>«iion  to 
igoodft,  and  of  felonies,  to  be  according  to  the  course  in  England 
until  altered  by  the  assembly.     All  laws  were  to  be  sent  to  Eng- 
land within  five  years  after  tlie  making  of  them,  and  if  disap- 
'proved  of  by  the  crowu  within  six  months,  to  become  null  and 
Toid.*    It  also  authorizc<d  the  proprietary  to  appoint  judges  and 
I  other  officers;  to  pardon  and  reprieve  criminals;  to  establish 
'courts  of  justieei,  with  a  right  of  appeal  to  the  crown  from  all 
judgments;  to  create  cities  and  other  corporations;  to  erect  ports 
and  manors,  and  courts  banm  in  such  manors.     Litiei-ty  was  »!• 
lowed  to  subjects  to  transport  themselves  and  their  goods  to  the 
Province;  and  to  import  its  products  into  England;  and  to  ex* 
;  |>ort  them  frnra  thenc<?  within  on«  year,  the  inhabitants  observ- 
ing the  acts  of  navigation,  and  all  other  laws  in  this  behalf 
made.     It  was  further  stipulated  that  the  crown  should  levy  no 
tax,  custom,  or  im[>oeition  upon  the  inhabitants  or  tlieir  goods, 
imlcss  by  the  conSL'nt  of  ttie  proprietary  or  assembly,  "  or  by  act 
of  Parliament  in  England."    .Sueh  arc  the  most  imiiortant  clauses 
of  tltis  chart«r,  which  has  been  do«med  one  of  the  bo«l  drau-n  of 
the  colonial  charters,  and  which  underwent  tJie  revision,  not 
merely  of  the  law-officers  of  the  crown,  but  of  the  then  Lord 
Chief  .luiitice  (North)  of  t^ngland.*    It  has  been  remarked,  as  a 
singular  omission  in  this  charter,  that  there  is  no  provision  that 
the  inhabitants  and  their  children  shall  be  deemed  British  sub- 


•  1  Pltrnd.  Pfim.  ITS .-  lawi  of  FeBoqrL,  ad.  of  Fnnklln,  Vit,  App. 

•  1  Prou<I,  P«nB.  175, 170^  177. 

•  \  Proud.  Pens.  177.  17  . 

•  1  CUlni.  Aaiula,  «K,  «$7. 


88 


01ST0RI  OF  TOE  COLO.VIES. 


[book  I. 


jeds,  and  entitled  to  uli  the  liberties  aiid  iiomunitira  thereof,  auch 
aclauso  l}eiiig  fouud  in  every  other  ciiitrtcr.'  Chalmvrs'  has  ob- 
Mrved  that  the  clau8«  wm  wholly  uniieceMary,  as  the  nlleirlatico 
to  tiie  ci-ov-n  was  reatervcd ;  and  the  common  law  llieiiee  inferred 
that  all  the  inhabitants  verc  subjects,  and  of  cwirso  were  ea< 
titled  to  nit  the  privileges  of  Knglishnicn. 

§  123.  Penn  immediately  invited  emigration  to  his  Provinoe 
by  hulding  uut  ctmceHRions  of  a  rery  liboral  nature  to  all  set- 
tlcni;'  and  uuder  his  benign  and  enlightened  policy  a  foundation 
vas  curly  laid  for  the  eBtabtishmentof  a  government  and  lavra 
which  have  been  jiwtly  celobrutcd  for  their  moderation,  wisdom, 
and  protecticMi  of  the  rights  and  liberties  of  the  people*  In  the 
introduction  to  his  firat  frame  of  gorontmcnt,  he  lays  down  tiiis 
propositiun,  which  was  far  beyond  the  genorul  spirit  of  that  age, 
thnt  "any  government  is  free  to  the  people  under  it,  whatever  be 
the  franie^  where  tlie  laws  rule,  nnd  the  people  arc  a  party  to  those 
laws;  and  more  than  this  is  tyranny,  oligarchy,  or  confusion."* 
In  that  frame  of  government,  after  providing  for  the  oi^nization 
of  it  under  the  govennnout  of  a  governor,  cnimcil,  and  general 
assembly,  chosen  by  the  pooplo,  it  was  declared  that  all  persons 
acknowledging  one  Almiglity  God,  and  living  peaceably,  shall 
tie  in  no  ways  molested  for  their  religious  pcrsiiusiun  or  pruetioo 
in  matters  of  faith  or  worship,  or  compelled  to  frt-qucul  ur  main- 
tain any  religious  worship,  place,  or  ministry.*  Provisions  were 
also  made  securing  the  rinht  of  trial  by  jury,  and  tlie  right  to 
dispoAO  of  property  by  will,  attested  by  two  witnesses;  making 
lands  in  certain  caacii  liable  to  the  payment  of  debts ;  giving  to 
seven  years'  quiet  possession  the  efHcacy  of  an  untpiestionuble 
title;  requiring  tlie  registry  of  grants  and  conreyaiiccs,  and  de- 
elaring  that  no  taxea  should  be  levied  but  by  a  law  for  that  pur- 
pose made.'  Among  otlKT  things  truly  honorable  to  the  memory 
of  this  great  man,  is  the  tender  regard  and  solicitude  which  on 
all  occasions  ho  manifested  for  the  rights  of  tJio  Indians,  and  the 
duties  of  the  settlers  towards  tlicm.     They  are  exhibited  in  his 

>  IGmham'slIiit.  afCokm.  41,  note:  t  Chalnr.  Anult,  <M,  tSS. 

*  1  Cbtlnt.  AanoK  SSP,  <»S, 

*  1  Pnniil,  IVnn.  103 ;  9  Vnai.  Piam.  .Kfp.  1  ;  S  Doug.  Snmni.  SOO,  HI. 
.  •  1  Ctela.  AqimIi,  S>S,  »2 :  M*nh.  Colo»  ch.  0,  [>(>.  ISS,  I8S. 

*  1  rrowl.  Ptnn.  1»7,  196  ;  3  I'taoO,  P«an.  Apfi.  T. 

*  1  PriMia.  PtBii.  SOO;  9  Proml,  Pmn.  Afip.  IS. 
f  3  Praad,  PtsD.  Apf>.  15.  SO  t  I  Clialni.  AnuU,  0(1,  «». 


CB.  xn.] 


PESNSTLTAXrA. 


89 


'  Orif^iual  plan  of  conccsifiioni^  an  well  att  in  various  other  public 
documents,  and  woro  cxcmplific-cl  in  hw  eubticqucnt  i-ondtict.  >    In 

LAugiist,  1082,  iu  order  to  nvctire  lii»  title  against  udvcrei;  cluimis 

rhe  procured  a  |>nt«nt  from  tlio  Bukc  of  Yurk,  rclcasiuf;  all  Uis 
title  derived  under  any  of  liia  |>ntents  from  Iho  crown.' 

§  124.  It  was  soon  fomid  tJiat  the  orijriiial  frsnic  of  goTCm- 
ment,  drawn  up  before  any  settlements  were  made,  was  ill  iidnptod 
to  the  state  of  things  in  an  infant  colony.  Accordingly  it  was 
laid  aaide,  and  a  nnw  frame  of  government  was,  with  the  consent 
of  tlio  gnneral  assembly,  estahlisbetl  in  I(l8i1.*  In  l()!j2,  Peon 
was  deprived  of  the  ^vernment  of  IVnnsylvania  by  Wiltiani  and 
Mar%' ;  but  it  was  again  restored  to  him  in  the  succeeding  year.* 
A  third   frame  of  government  was  established  in  ICfKt.^    Tbia 

I  again  was  surrendered,  and  a  new  final  charter  of  gioremment 
waa,  in  October,  1701,  with  the  consent  of  the  general  assembly, 
established,  under  which  tJic  Province  continued  to  be  governed 

'down  to  the  period  of  the  American  Revolution.  It  provided  for 
full  liberty  of  conscience  and  worship;  and  for  the  right  of  all 
persons  professing  to  believe  in  Jesus  Christ,  to  serve  the  govcrn- 

'nent  in  any  capacity."  An  annual  assembly  was  to  l>o  fbosen 
of  delegates  from  each  county,  and  to  have  the  usual  legislative 
authority  of  other  colonial  assemblies,  and  also  power  to  nomi- 
nate certain  [(crsons  ftir  oftic«  t*)  the  governor.  The  laws  were 
to  be  subject  to  the  approbation  of  the  governor,  who  had  a  coun- 
cil of  slate  to  assist  him  in  the  government.'  Provision  waa 
made  in  the  same  charter,  that  if  the  representatives  of  the  Prov- 
ince and  territories  (meaning  by  territories  the  tlirec  counties  of 
Delaware)  should  nut  agree  to  join  tt^tlier  in  legislation,  they 
should  be  represented  in  distinct  aMemblies.* 

§  125.  In  the  legislation  of  Pennsylvania,  early  )>rovision  was 
made  (in  1683)  for  the  descent  and  distribution  of  intestate 
estatco,  by  which  they  were  to  bo  divided  among  all  the  children, 


<  1  ClnlK  A]iB>K  «H  ;  1  Proud,  Pmn.  IM,  IBS,  SIS,  4S9  ;  S  Prond.  Apfi.  4. 

■  t  pN«d,  Penn.  MO. 

■  I  PicBd,  pHtB.  3M;  9  Proud,  pMiit.  App.  21]  3  Doug.  Sunun.  903. 

*  1  PimkJ,  Pni«.  8T7,  403. 

■  I  ProiiO,  PniA.  415 ;  2  PimuJ.   P*nn.  ApfL  30  ;  HamIuII,  Colon,  eb.  A,  p.  1S3. 

*  1  Proml,  Peoa.  (43  to  IM  ;  3  Dou^  Suinik.  S03. 
1  1  Pnnid.  reiin.  4S0. 

*  1  Pt«ad.  PcniL  at,  U& ;  1  HdMi^  Xaaal*.  483. 


90  HIBTOBT  OF  THE   COLOMIEB.  [BOOK  L 

the  eldest  boh  having  a  doable  share;  and  this  provision  was 
never  afterwards  departed  from.'  Notwithstanding  the  liberty  of 
conscience  rect^nized  in  the  charters,  the  legislature  seemB  to 
have  felt  itself  at  liberty  to  narrow  down  its  protection  to  persona 
who  believed  in  the  Trinity  and  in  the  divine  inspiration  of  the 
Scriptures,' 

■  Ukws  of  ?tnu.,  ed.  of  Fnnldn,  1712,  App.  E ;  Id.  p.  60 ;  1  Cbalm.  AnntK  B19. 

■  Uwa  of  Penn.,  ed.  of  F^nuklin,  1718,  p.  1  [170fi]. 


cQ.  xin.] 


DELLVAILL. 


di 


CHAPTER  Xm. 


DELAWARB. 


§  126.  After  Pcnn  had  bccomo  proprlctnrr  of  Pennsylvania, 
he  purchased  of  the  Duke  of  York,  in  1t>8*2,  all  his  riglit  and  in- 
terest in  tlie  territorj',  afterwards  called  the  Three  Lower  Coiin- 
tiea  of  Delaware,  extending  from  the  south  bouDdarj*  of  the 
Prorinee^  and  situated  on  the  western  side  of  the  rirer  and  bay 
of  Delaware  to  Cape  Hcniojwu,  beyond  or  south  of  Lcwifiton ;  and 
the  three  counties  took  the  names  of  New  Castle,  Kent,  and  Sus- 
ses.' At  this  time  they  were  inhabited  principally  by  Dutch 
and  Swedes,  and  seem  to  have  constituted  an  appendage  to  the 
government  of  Xcw  York.'  The  first  settlement  by  the  Swedes 
seems  to  have  been  earlier  than  1638;*  and  no  permanent 
settlements  were  attempted  by  tlie  Dut^^li  until  a  later  period 
(1651).* 

§  127.  In  the  same  year,  with  (he  eoiuient  of  the  people,  nn 
act  of  imion  with  tlic  Province  of  PeniiBylvania  was  passed,  and 
an -Act  of  settlement  of  tlie  frame  of  (^rvmment  in  a  funeral  as- 
sembly, composed  of  deputies  from  the  counties  of  Delaware  and 
Pennnylvanla.*  By  this  act  the  three  counties  were,  under  the 
name  of  the  territories,  annexed  to  the  Province,  and  were  to  be 
reprnflented  in  the  general  assembly,  governed  by  the  aarae  laws, 
and  to  enjoy  the  same  privileges  as  the  inhabitants  of  Pennsyl- 
vania.' Difliculties  soon  afterwards  arose  between  the  deputies  of 
the  Province  and  those  of  the  territories;  and  after  various  subor- 
dinate arrangements,  a  final  separation  took  place  between  them, 


>  1  Pnrad,  Pran.  Sfll,  203 ;  1  Chftlm.  Annak.  0(3  ;  S  Dduc-  Sumin.  V>7,  &«. 

■  1  (%•)»««■'■  AmuOa,  631,  633,  633.  63t,  eiS :  1  Holmra't  Aanali,  SS5,  Ml ; 
1  Pitk.  lIiKL  M,  M.  »  :  S  DoUK.  Samta.  221.  Sm  I  CIuUm.  Auiub,  5TI,  ST3.  Wf, 
<S1. 

*  1  dMtta.  Adu1«,  831. 

*  M.  «SI,  SSS,  034. 

*  )  Ptowl.  Pnin.  9oe  ;  1  Holmn'i  Annili.  tM :  1  CThalm.  AntuJi^  645.  <t9. 

*  1  Cl>diM.  Anaili,  644 ;  1  DalL  Vma.  Uwi,  App.  34.  36  ;  3  Colilnu'i  Firv  !?•■ 
,  App. 


92  HISTO&T  OF  THE  COLONIES.  [BOOK  I. 

with  the  consent  of  the  proprietary,  in  1703.  From  that  period 
down  to  the  American  Revolution,  the  territories  were  governed 
by  a  separate  legislature  of  their  own,  pursuant  to  the  liberty 
reserved  to  them  by  a  clause  in  the  original  charter  or  frame  of 
government. ' 

'  1  Praad,  Penii.  SfiS,  iSi ;  1  HoIidm'i  AddrIb,  idi,  note ;  2  Doug.  Summ.  297, 


ca.  JOT.] 


NOBTB  AND  80010  CABOUKA. 


98 


CHAPTKR  Xiy. 


NOBTH    AND  aOVTH   CAROLIKA. 


§  128.  We  next  comii  to  the  coiuideratiMi  of  the  histmy  of  tttc 
political  organizaticm  uf  the  Curolinaa.  That  level  region,  which 
8tretch«8  from  the  86th  de^-ec  of  nurtli  latitude  to  ("ape  Florida, 
afforded  an  ample  tlieutre  fur  the  early  ntni^lea  of  the  three 
great  European  powers,  Spain,  France,  and  England,  to  maintain 
or  acquire  an  exclusive  8o%'ereignty.  Various  settlement)!  wore 
made  under  tltc  au8pic«8  of  each  of  the  rival  powers,  und  a  com* 
moil  fatv  ecemed  fur  a  while  to  attend  them  all.'  In  March,  1662 
{April,  li>63),  Charleii  the  Second  made  a  grant  to  Lord  Clar- 
endon and  others  of  the  territory  lying  on  the  Atlantic  Ocean, 
and  extendinii  from  the  north  cud  of  the  i^lnnd  called  Hope 
Island,  in  the  South  Virginian  Seas,  and  within  36  defies  of 
north  latitude,  and  to  tho  vest  as  far  as  the  Houth  Heas,  and  so 
respectively  as  far  aa  the  river  Mnthios  upon  the  coast  of  Florida, 
and  within  31  dej^rees  of  north  latitude,  and  so  west  in  a  direct 
lino  to  the  .South  >Seo«,  and  erected  it  into  a  province,  by  the 
name  of  Carolina,  to  be  holdeu  as  of  the  manor  of  Enot  Green- 
wich in  Kent,  in  free  and  common  aocagp,  and  not  in  capita,  or 
by  knight  service,  subject  immediately  to  the  crown,  as  a  de- 
pendency, forever.* 

§  t2ft.  The  grantees  were  created  abaotute  lorda  proprietarlca, 
saving  the  faith,  all<^anoe,  and  atipremo  dominion  of  the  crown, 
and  invested  with  as  ample  rights  and  jurisdictiona  as  the  Bishop 
of  Durham  )M>!me»s(.'d  in  his  palatine  diocese.  T1h>  charter  Kecms 
to  hare  btx-u  copied  from  that  uf  UarjUud,  and  resembles  it  in 
nany  of  it«  provisions.  It  authorized  the  proprietaries  to  enact 
laws  with  the  assent  of  the  freemen  of  the  colony,  or  their  dele- 
gates, lu  ca-ct  courts  of  judicature,  to  appoint  civil  ofTiccnt,  to 
grant  titles  of  honor,  to  erect  forta,  to  nuikc  war,  and  in  cases  of 
necessity  to  exercise  martial  law,  to  build  harbors,  to  make 

>  1  Clikliiitn'*  Aniub,  AIS,  Ml,  616. 

*  I  Chalm.  Anoal^  Sl« ;  1  HoIiim*'*  Aniuib,  )«,  323 ;  Umh.  Coloa.  eh.  S,  p.  U>; 
1  VTiUIuiiHiB'i  Korth  CuoL  S7,  3S0  ;  CuoUus  Cbuun^  Iimtl^a,  4M> 


m 


u 


BttTOET   OP  THE  COLOylVS. 


[book  1. 


porta,  to  erect  manors,  and  to  enjoy  customa  and  subflidiea  im- 
poaed  with  the  consent  of  the  (roomcn.'  And  it  further  author- 
tzed  the  proprictaricM  to  i^aiit  indul^nccH  und  dispi-iututioiui  in 
rcligiotu  afFairs,  ko  that  persons  migbt  not  be  motcsUid  fordiffer- 
enccH  in  speculative  opinion  with  respect  to  religion,  arowedljr 
for  tlic  purpose  of  tolerating  non-conformity  to  the  Church  of 
Eu^Iiuid.^  It  further  required  that  all  laws  should  "be  conso- 
nant to  reason,  and  as  near  as  may  be  conveniently,  ^reesble  to 
the  laws  and  customs  of  this  our  kingdom  of  England. "  *  And 
it  declared  that  the  inhahitants  and  their  children,  born  in  the 
Province,  slionld  be  deniKcns  of  KngUnd,  and  entitled  to  all  the 
privileges  and  immunities  of  British-bom  aubjects. 

§  180.  The  proprietaries  immediately  took  measures  for  the 
Ktllcment  of  the  Province,  and  at  the  deaire  of  the  Nnw  Knglnnd 
settlers  within  it  (whose  disposition  to  emigration  is  with  Chal- 
mers a  constant  theme  of  reproach)  published  proposals,  forming 
a  basin  of  government*  It  wna  deelared  that  there  should  l>e  a 
governor  chosen  by  the  proprietaries  from  thirteen  peraona  named 
by  tho  colonists,  and  a  gpueral  aRsembly,  oomposed  of  the  gov- 
ernor, council,  and  reprfsentativea  of  the  people,  who  should  haTO 
authority  to  make  laws  not  contrary  to  those  of  England,  which 
should  remain  in  force  until  disapproved  of  by  the  proprietaries.' 
Perfect  frt'cdom  of  rcUsiuo  was  also  promised,  and  a  hundred 
acres  of  land  offered  at  a  half-penny  an  acre,  to  every  settlor 
within  five  }'ear8. 

§  131.  In  1665,  the  proprietaries  obtained  from  Charlce  the 
Second  a  second  charter,  with  an  enlargement  of  boundaries. 
It  recited  the  grant  of  the  former  charter,  and  declared  tlte  lim- 
its to  extend  north  and  eastward  as  far  as  the  north  end  of  Curri- 
tuck River  or  Inlet,  upon  a  straight  westerly  line  to  Wyonoak 
Creek,  which  lies  within  or  abont  Sfi  degrees  80  minutes  of  north 
latitude,  and  so  west  in  a  direct  lino  as  far  as  tho  ^uth  Seas, 
and  south  and  westward  as  far  as  the  degrees  of  21)  inchisive  of 
northern  latitude,  and  so  west  in  a  direct  line  aa  far  as  the  Soath 

>  1  ilolinn'i  AnntU,  327,  SSS.  Tliit  chartn,  Md  ttw  Mcnttd  diuUr,  and  Uu  tm- 
dMoantel  loaiUuitioM  iniHl»  by  th*  prafiriatuiM^  La  t«  I*  fouad  fa  •  hmU  iinuto 
prinMia  Loiuka  ttltbMit  d*l*,  uliirh  ii  is  lisrvard  Colltiga  Lttmij. 

*  1  OolnMa'*  Anaab.  3SS :  1  Hewau'i  SoaXh  Cu.  13  to  17. 

*  Cuulliu  Charter,  Ito,  Loniloa. 

*  1  Ch»lBL  AnnkI*,SIS. 

*  1  Chilm.  Aaiuk  GIS,  SG3  :  lUnh.  Colon,  ch.  S^  p.  1S3l 


CH.  XIT.] 


KORTH    AND  SOUTH   CADOUNA. 


05 


Seaa.'  It  then  proceeded  to  constitute  th«  proprietaries  ab8olut« 
owners  and  lords  of  the  Province,  sanng  the  faith,  allegiance,  and 
BOTcreign  dominion  of  tlie  crown,  to  hold  the  same  tia  of  tlie 
manor  uf  Eaat  Greenwirh  in  Kent,  in  free  and  common  eoco^ 
and  not  in  capita,  or  hv  knight  aerrico,  and  to  possess  in  the  same 
all  tlie  royaltiea,  jurisdictions,  and  privilegoa  of  the  Bishop  of 
Durham  in  his  diocese.  It  also  gave  them  power  to  make  laws, 
with  the  assent  of  the  freemen  of  the  Province,  or  their  delegates, 
provided  such  laws  were  consonant  with  reason,  and  as  near  as 
convenieutly  may  be  agreeable  to  the  laws  and  customs  of  the 
realm  of  England.'  It  also  provided  that  the  inhabitajits  and 
their  children  should  he  denizens  and  1  luges  of  the  kingdom  of 
Knglaiid,  and  reputed  and  held  as  Uic  iicgc  people  bom  within 
the  kingdom,  and  might  inherit  and  purchase  lands,  and  sell  and 
l>e()URath  the  same,  and  should  poMess  all  the  privileges  and  im- 
munities of  natural-lram  subjects  within  the  realm.  Ifaiiy  other 
pro^Hsions  were  added,  in  substance  like  those  in  the  former 
charter.*  Several  detaclied  settlements  were  made  in  Carolina, 
which  were  at  first  placed  under  distinct  temporary  governments ; 
one  was  in  Albemarle,  another  to  the  south  of  Cape  Fear.*  Thus 
various  independent  and  separate  colonies  were  established,  each 
of  which  had  its  own  assembly,  its  own  customs,  and  its  own 
laws ;  a  policy  which  the  proprietaries  had  aftervi'ards  occasion  to 
regret,  from  its  tendency  to  enfeeble  and  distract  the  Provioce.' 

§  182.  In  tJie  year  16fi9,  the  proprietaries,  diBsatisficd  with 
tiie  STStcms  already  established  within  the  Province,  siguvd  a  fun- 
damental conatitution  for  the  govenunent  thereof,  the  object  oi 
which  is  di-elarcd  to  be,  "tliut  we  may  e«tabl)sh  a  govi^rnment 
agTveablc  to  the  monarchy,  of  which  Carolina  is  a  )>art,  that  we 
may  avoid  making  too  numerous  a  democracy."^  This  cmistitu- 
linn  was  drawn  up  by  the  celebrat^-d  Jolin  Locke,  and  his  memory 
has  often  been  reproached  with  the  illiberal  character  of  some 

1  I  CUot.  AaiuU,  Sll :  1  VIUIuH*!  H.  Cw.  130.  Ul ;  1  Holnw'*  Aniuli,  840 ; 
Onllaa  Oiaitera,  tto,  Lonikn. 

>  1  WiUknw'*  K.  Ou.  S80,  237. 

■  IHofaiiM'a  AnMli,3tO;lClMliii.  Aniwla,S31,  533  ;  I  WiUiaau't  S.  C'-ic.  230  to 
3M  ;  XnAaW*  Uwi  of  N.  Car.  ClMrttc.  ppu  I  to  T. 

*  1  ClAlm.  AdmI*,  S19,  CM,  CS(,  ftU ;  1  WUIknu'i  N.  Or.  88,  tt,  M, «. ».  H, 
103.  Ul. 

*  I  CbUn.  AddoK  ^31. 

*  I  CIuIbi.  AnnoU,  iM,  E3T  ;  1  Hobui'i  laiuk.  UOv  SSI,  and  aoU  ;  CaraUna 
Chntan,  Ma,  lonxlMt,  p.  33. 


96 


HisTonr  OP  THE  ooi:/»nEs. 


[book  I. 


of  tbe  articles,  the  opprMttivc  a«rvihtdc  u(  o<tlicrs,  and  Ihc  general 
disregard  of  somo  of  tho«c  maxiau  of  rcligloun  and  political  lib* 
erty  for  wkioh  hi;  hiut  in  his  li-cati8«s  of  govvrumeut  and  other 
writEngM  contended  with  so  much  ability  and  kuocciw.  Probably 
there  were  many  ciFCiunstanccH  attending  tJiiii  trantiaction  which 
are  now  iniknowu,  and  which  niig:ht  well  have  moderated  the 
severity  of  the  reproach,  and  furoiHhed,  if  not  a  justification,  at 
least  some  apology  for  this  extraordinary  instance  of  imwiao  and 
xiaionary  legislation. 

§  133.    It  provided  that  the  oldeeit  proprietary  should  be  the  pal- 
atine, and  the  next  oldest  shonld  succeed  him.     Bach  of  the  pn>- 
priet4trie8  was  to  hold  a  high  office,    Tlie  rules  of  precedency  were 
most  exactly  established.    Two  orders  of  hereditary  nobility  were 
instituted,  with  suitable  estates,  which  were  to  descend  witli  the 
dignity.     I'he  provincial  legislature,  diguthed  with  the  name  of 
Parliament,  was  to  be  biennial,  and  to  conaistof  the  proprietaries 
or  tJieir  deputies,  of  the  nobility,  and  of  representatives  of  the 
freeholders  chosen  in  districts.     They  were  all  to  meet  ia  one 
apartment  (like  tbe  ancient  Scottish  Parliament),  and  enjoy  an 
eijual  vote.     No  Imsinesa,  however,  was  to  be  proposed,  until  it 
had  been  debated  in  tbe  grand  council  (which  was  to  consist  of 
the  jiroin-ietaries  and  forty-two  counsellors),  whose  duty  it  was  to 
prepare  bills.     No  act  was  of  fonre  longer  than  until  the  next  bicn- 
uial  meeting  of  the  Parliament,  unless  ratified  by  the  palatine  and 
a  qnonim  of  tJie  proprietaries.     All  the  laws  were  to  Wcome  void 
at  the  end  of  s  century,  without  any  formal  repwil.     The  Church 
of  England  (which  was  declared  to  be  the  only  true  and  orthodox 
reli^on)  was  atone  to  !«  allowed  a  pobtic  maintcuance  by  Parlia- 
ment   But  every  congregation  might  tax  its  own  members  for  the 
support  of  its  own  minister.     Every  man  of  scventeou  years  of 
age  u-as  to  declare  himself  of  some  church  or  religious  profea- 
Biou,  and  to  be  recorded  as  such;  otherwise  he  was  not  to  have 
any  benefit  of  the  laws.     And  no  man  was  to  be  permitted  to  be 
a  freeman  of  Carulina,  or  have  any  estate  or  habitation,  who  did 
not  acknowledge  a  ()o<I,  and  that  (5od  is  to  be  publicly  wor- 
8hij>i)ed.     In  other  respects  there  was  a  guaranty  of  religious 
freedom.'    lliere  was  to  bo  a  public  registry  of  all  deeds  and 

1  Hentt'i  Soatli  C*r.  it  to  47,  821.  4o.  g  Carolint  ClurUn.  4(0.  londoD,  p.  13, 
;  Ae.  i  1  Cittlsi.  Aan^h,  &M ;  I  HaIom'i  Amak,  SU.  891  ;  1  'WiilUtni'i  X.  Cm.  101 
Lto  111  i  Hanh.  Cobn.  ob.  S,  |>.  ISSj  1  Bftwuy'i  Soath  Cw.  St,  ». 


CH.  11  v.] 


NORTH    ASP  SODTH   CAROLISA. 


97 


cotiToyanow  of  landn,  and  of  marriages  and  liirths.  Every  free- 
man wan  to  bavo  "absolute  pow<!r  and  authority  over  his  negro 
slavM,  of  what  opinion  or  religion  soever."  No  civil  or  crimi- 
nal cauM  was  to  bo  tried  but  br  a  jury  of  the  peore  of  thn  party ; 
but  the  wrdict  of  a  majority  waa  binding.  With  a  view  to  pre- 
vent unoMt'saary  litigation,  it  was  (with  a  aimplicity,  which  at 
this  time  may  escite  a  smile)  providc-d  that  "it  shall  be  a  base 
and  vile  thing  to  plead  for  money  or  reward:"  and  that**»inco 
multiplicity  of  commonta,  n»  well  aa  of  iuw]^  have  frrcal  incon- 
veniences, and  serve  only  to  olMCure  and  perplex,  all  manner  of 
coromentfl  and  expositions  on  any  p«rt  of  these  fimdamental  oon- 
Btitiilioni*,  or  on  any  part  of  the  common  or  statute  law  of  Caro- 
lina, ar«  ahwiliitely  pruhibited." ' 

5  134.  Such^waa  the  sulwtanoe  of  this  celebrated  constit^ition. 
It  IB  eaay  to  perceive  that  it  wan  ill  adapted  to  the  feclinga,  the 
wanta,  and  the  opinions  of  the  cotoniHta.  The  introduction  of  it, 
therefore,  waa  reaiated  by  the  pcoplei,  a»  much  as  it  coiild  be;  and 
indeed,  in  aomo  reH)K>ctA  it  waa  found  impracticable.'  Public 
dissatisfaction  daily  increaaed,  and  after  a  few  years'  experience 
of  its  ill  arrangements,  and  its  mischioroua  tendency,  the  propri- 
etariee,  npon  the  application  of  the  people  (in  169^X  abrogated 
the  oonatitntion,  and  restored  the  ancient  form  of  govonunent. 
Thus  perished  the  labora  of  Mr.  Locke;  and  thus  jierishi-d  a  sys- 
tem, under  the  administration  of  which,  it  has  Ix-en  remarked, 
the  Carolinians  had  not  known  one  day  of  real  enjoyment,  and 
that  inlrodiicwi  evils  and  disorders,  which  ended  only  with  the 
diamlution  of  the  proprietary  government.^  Perhapa  in  the 
aonala  of  the  world  there  is  not  to  be  found  a  more  wholesome 
lesson  of  the  utter  folly  of  alt  efforts  to  establish  funns  of  govern- 
ment upon  mere  theon,',  and  of  the  dangers  of  legislation  without 
eonsiilting  the  habits,  manners,  feelings,  and  opinions  of  tht 
people  upon  which  they  are  to  operate. 

(  1&5.  After  James  the  Second  came  to  the  throne,  the  same 
general  course  was  adopted  of  filing  a  '/ho  warranto  against  the 
proprietarica,  u  had  been  successful  in  respect  to  other  colonies. 


)  Chroliu  Ctwrttn,  tlo.  p.  i&,  S  70.  p.  17,  |  W  i  1  ITmnH'i  Soath  Oir.  t31.  *6. 

■  1  lUinMr'*  Sonlh  Cb.  39,  t».  SS  ;  1  Hiwwlt'i  Sooth  C^t.  IS  :  1  Chalmen'i  An- 
Mb.  SST,  52B,  i»,  S30,  SSZ,  iiO ;  Hank.  Cglon.  cb.  5,  p[x  114,  1S7,  IM ;  1  Willbau't 
V.  Out.  ISS,  US. 

VOL.  I.  —  7 


9B 


BIdTORr  OF  TBS  COLONIES. 


[book 


The  proprietaries,  with  a  riew  to  elude  the  storm,  prudently 
offered  to  surrender  their  charter,  and  tbcrvby  gained  time.' 
Before  anything  definitive  took  plaoe,  the  Rvvolutiuu  of  1688  oc- 
curred, which  put  an  vnd  to  tliv  hostile  pruecudinga.  In  April, 
16^8,  the  proprietariei)  made  uuother  ayittem  of  fuudum«nta)  coa- 
stitntions,  which  emhniced  luany  of  thoBC  propounded  in  thu  first, 
and  indeed,  waa  manifestly  u  more  aineudmvnt  u(  llicm. 

{ 186.  These  constitutions  (for  experience  docs  not  seem  to 
have  imparted  more  wisdum  to  the  giroprietaries  on  thin  subject) 
contained  the  must  obj^ctiunublu  features  of  the  system  of  gov- 
ernment, and  hereditary  nobility  of  the  form«r  const! lutitms,  and 
shared  a  common  fat*;.  Tlioy  were  never  generally  luwvnied  to 
by  the  people  of  the  eoluiiy,  or  by  their  representatives,  as  a  )>ody 
of  fundamental  laws.  Hewatt  says,*  that  none  c^  these  systuius 
ever  obtained  "the  force  of  fundamental  and  unalterable  laws  io 
the  colony.  What  rcgulutions  the  people  found  applicable,  tlicy 
adopted  at  the  rc4)uc«t  of  tlicir  governors;  but  observed  tlicsc  on 
account  of  their  own  propriety  and  necessity,  rather  than  as  a 
system  of  laws  inipoMd  on  them  by  British  legislators.'*' 

§  137.  There  was  at  this  period  a  space  of  three  hundred  miles 
between  the  southern  and  northern  settlements  of  Carolina;* 
and  though  the  whole  Province  wag  owned  by  the  same  proprieta- 
ries, the  legislation  of  the  two  great  settlements  had  been  hith- 
erto conducted  by  separate  and  distinct  assemblies,  sometimes 
under  the  same  governor  and  nomctimes  under  different  gover- 
nors. The  legislatures  continued  to  remain  distinct  down  to  the 
period  when  a  final  imrrender  of  the  proprietary  ohnrter  was  made 
to  the  crown  in  1729,*  The  respective  tflrrituriea  wire  desig- 
nated by  the  name  of  North  Carolina  and  South  Carolina,  and  the 
laws  nf  each  obtained  a  like  appellation.  Cape  Fear  seems  to 
have  Wen  commonly  deemed  in  the  commissions  of  the  governor 
tile  boundary  between  the  two  colonies.^ 

)  1  ChdiMnfi  AnniU,  5<9  ;  1  Rolnci'i  Asub.  418. 

*  1  lUmtt'*  Smth  Carol.  U. 

*  Dr.  Htmnjr  tnati  thcM  ninamin  miuHuiUoim  u  of  no  inlborit^  whataonw  In 
the  PioriniMv  u  >  Uw  ot  ral«  of  lOViinBtml.  Bnt  in  >  Hpl  point  gf  view  tliB  |if«po- 
litloo  i*  open  to  much  donbc    t  Vmmtf't  South  Cuol.  ISl  tn  131. 

*  I  Willinnn'*  V.  Car.  15S. 

*  Uanb.  Colon,  oh.  t,  pi'.  214.  St7 1  1  Hevmtt'*  Soath  CmL  !)2,  tl8. 

*  1  WIUUou'*  X.  Car.  ISI.  IflS:  1  It«nMr'*  Sontli  Carol.  S«.  b..  88.  H :  1  Btw- 
■tt't  8mUi  Car.  U^  SIS ;  1  HoUnna'a  Anaids  S3S,  JtS  ;  Manb.  Coloa.  eh.  P,  p.  Ut. 


CH.  XIV.] 


NORTH   ASD  flODTH   CAKOUNA. 


99 


§  l&R.  Ry  the  mirrender  of  tlie  charter,  th«  whole  govenuueut 
of  the  territory  was  vested  in  the  crown  (it  had  been  in  fact  CX- 
ercised  by  the  cn>wii  ever  since  the  overthrow  of  the  proprietary 
goTemiDcnt  in  1720) ;  and  henceforward  it  became  a  royai  Prov- 
ince, and  wiui  governed  by  commiaaiun  under  a  form  of  govern* 
meot  subBtantiully  like  that  established  in  the  other  royal 
provinocfl.'  This  chauj^  of  jrovcrninout  u-as  very  acceptable  to 
Uw  people,  and  gave  u  new  impulse  to  their  industry  and  enter- 
prise. At  a  later  period  (1782),  for  the  convenience  of  the 
inhabitantx,  tltv  Province  wa»  divided;  and  the  divisions 
■vcTv  distinguished  by  Uio  nuiuc-s  of  North  Carolina  and  South 
Carolina.* 

§  139.  The  form  of  jtovemment  conferred  on  Carolina  when  it 
became  a  royal  Province  was  in  substance  this:  It  consisted  of  a 
governor  and  council  appointed  by  the  crown,  and  an  assembly 
chosen  by  the  jieople,  and  tbe»c  three  brunc)ie«  constituted  tlie 
legislature.  The  governor  convent-d,  proi-ogued,  and  dissolved 
the  legiftlaturc,  and  had  a  negative  upon  the  laws,  and  exercised 
the  executive  authority.'  Ho  poHnetvied  also  the  powers  of  tI>o 
court  of  chancery,  of  the  admiralty,  of  supreme  ordinary,  and  of 
appointing  magistrates  and  militia  officers.  All  laws  were  sub- 
I  jeet  to  the  royal  approtwtion  or  dissent;  but  were  in  the  mean 
time  in  full  force. 

§  140.  On  examining  the  statutes  of  South  Carolina,  a  clo«*c 
adhercnoc  to  the  general  policy  of  the  English  laws  is  apparent. 
Aa  early  as  the  year  1712,  a  large  body  of  the  English  statutes 
was,  by  express  legislation,  adopted  as  part  of  its  own  code;  and 
all  Engliah  statutes  respecting  allegiance,  all  the  test  and  su- 
premacy acts,  and  all  acts  declaring  the  rights  and  liberties  of  the 
subjects,  or  securing  the  same,  were  also  declared  to  be  in  full 
force  in  the  Province.  All  and  every  part  of  tlio  common  law, 
not  altered  lir  those  aofa  or  inconsistent  with  the  constitutions, 
costoms,  and  laws  of  the  Province,  was  also  adopted  as  juirt  of 
it*  jurisprudence.  An  exception  was  made  of  ancient  abolished 
tenures,  and  of  ccelcsiastical  matters  inconsistent  with  the  then 
ebarch  est^lishmcnt  in  the  Province.  Tl>ere  was  also  a  saving 
of  tlio  liberty  of  conscience,  which  was  allowed  to  b«  enjoyed 

1  Mmh.  CoUm.  ch.  9,  p.  Sir. 

*  Umh.  C<]t«a.  oIl  «.  p.  SS7 1  1  HolmM's  AsnaU,  914. 

*  1  B«w>U'i  SoiUli  Cm.  cli.  7,  p.  I,  <f  m^.  i  1  Buimjr's  Sontli  Ou.  tk.  «.  p.  H. 


100 


aiSTOBT  OP  THE 


[book  I. 


by  the  charter  from  the  crown  and  the  lawa  of  the  Provinct* 
Thia  in>erty  of  conack-noo  did  not  ainotmt  to  a  right  t«  deny  the 
Trinity.'  Tins  Church  of  Eu^ltind  had  been  previously  estab- 
liBh(>d  in  tho  Province  (in  1704),  mid  all  mvmbora  of  th«  aiMem- 
lily  were  rcqiiimd  to  be  of  that  per8ua8ion.^  Portunatwly  Quccu 
AnnL-  onmilleil  these  obnoxious  laws;  and  tJiough  the  Church  of 
Kn^land  wax  established,  disaenters  obtained  a  toleration,  and 
the  luw  respecting  tlio  religious  qualification  of  a«8cmbl}'mea 
was  shortly  afterwards  repealed. 

§  HI.  The  l«wft  of  descents  of  intestate  real  estatps,  of  wills, 
and  of  U80«,  existing  in  Bngland,  seem  to  have  acquired  a  per- 
mnne&t  foundation  in  the  colony,  and  remained  nndisturbed, 
tmtil  after  the  pi>riod  of  the  American  RcrolutlcHi. *  As  in  the 
other  colonies,  the  registration  of  convcyauct-s  of  lands  waa  early 
provided  for,  in  order  to  suppress  fraudulent  grant*. 

§  142,  In  respect  tn  North  Carolina,  there  was  an  early  decla- 
ration of  the  legislature  (1715)  cooformably  to  the  cbart«r|  that 
the  common  law  was  and  should  be  in  force  in  tlio  colony.  All 
statute  laws  for  maintaining  the  royal  prerogative  and  succession 
to  the  crown,  and  all  such  laws  made  for  the  cstublislinK'nt  of 
the  church,  and  luws  made  for  the  indulgence  to  Protestant  dis- 
senters; and  all  Isws  providing  for  the  privileges  of  the  people^ 
and  security  of  trade;  and  all  laws  for  the  limitation  of  actions 
and  for  preventing  vexatious  suits,  and  for  preventing  immorality 
and  fraud,  and  confirming  inheritances  and  titles  of  land,  were 
declared  to  be  in  force  in  the  Proriucc.*  The  policy  thus  avowed 
was  not  departed  from  down  to  the  period  of  the  American  Revo- 
lution ;  and  the  laws  oS  de«oent8  and  the  registration  of  convey- 
ances in  both  the  Csrolinas  were  a  silent  result  of  their  common 
origin  and  government 

>  Orimke's  Soatk  Otntint  Um  aTlS).  pp-  S>>  ^B,  99. 100^ 

»  W.  A«rfI703.  p.  i. 

1  1  HoItBo'g  Aaatlt,  iSt.  «M,  491  ;  1  ItewM'*  8M(th  Oud.  lOfl  to  irT. 

•  i  Bwmoj'i  Sontlt  0*r.  130.    n*  dcKMt  of  mMm  m*  Mt  ■Itend  natll  IKL 

•  IncUU'*  Nonh  Cu.  Uin,  IT19,  pp.  18,  IB. 


ca.  XV.] 


CEOBQIA. 


loi 


CHAPTER   XV. 


OBOBOU. 


§  143.  In  the  Mine  year  in  whioh  Carolina  was  divided  (1782), 
a  pn^ject  was  formed  for  the  settleiiK'nt  of  a  colony  ti|Kiii  the  uii- 
occupied  territorj  between  the  river*  Savannah  and  Altaraaha.' 
The  object  of  the  projectora  wa«  to  ntreiigthen  tlip  I'rovince  of 
Carolina,  to  pnmdu  a  iuuint«nanci>  for  tlie  miDtering  poor  of  the 
mother  country,  and  to  open  an  asylum  for  the  |>eraecat«d  Prot- 
Wtuits  in  Europe ;  and  in  common  with  all  the  other  eolonies  to 
•ttempt  tlic  couvcraion  and  civilization  of  tiio  natives.^  Upon 
applicatiou,  (icorge  the  fecund  gnuited  a  vliart«r  to  the  com- 
pany (coiisiatiu);  of  Lord  Pvrcival  and  twenty  othors,  ainonff 
whom  viA  the  tcli-brutod  Oglethorpe),  and  incorporated  them  by 
the  name  of  the  Truatccfl  for  cstubliahing  the  Colony  oi  Georgia 
in  Amorica.'  The  charter  conferred  the  usual  powers  of  eorjw- 
rntionii  in  England,  and  authorized  the  trusteca  to  hold  any  terri- 
tories, juriddictiuun,  etc,  iu  America  for  the  better  acttling  of  a 
eoluny  tliere.  Tlic  offaim  of  the  corporation  were  to  be  managed 
by  tbc  corporation,  and  by  a  common  coimcil  of  fifteen  pereou*, 
in  the  first  place  nominated  hy  the  crown,  and  afterward^  as 
vacancies  occurred,  filled  by  tlie  corporation.  Th«  number  of 
comnion-oouucilmen  migtit,  witli  the  increase  of  the  corporati<Hi, 
Iw  increased  to  twenty-four.  The  charter  further  granted  to  the 
corporation  seven  undivided  parts  of  all  the  territories  lying  ia 
that  part  of  South  Carolina  whi<-h  \\f»  from  the  northern  stream 
of  a  river,  there  called  tlie  Savannah,  all  along  the  aea-coast  to 
the  southward  unto  the  southemmoat  atream  of  a  certain  other 
great  river,  called  the  Altamaha.  and  westward  from  the  heads 
of  the  said  rivcni  niapectively  in  direct  Unea  to  tlio  South  •Si'ms, 
to  be  held  as  of  the  manor  of  Uampton  Court,  in  Middlesex,  in 


1  1  UolinM'i  AdmIi,  ESI ;  lla»h.  Cottwiot,  ch.  9, {l SiT  :  2  Hewitt* Soath Otf.  IS, 
1<)  tkakt^t  niu.  OoIodIm.  II). 

■  1  Holnm't  Anntla,  S5S  ;  3  Hrnu's  Soalfc  Cw.  IS,  14,  IT. 
*  CWUi*  Of  V.  A.  Vvyriaea,  Ito,  Lomioa,  ITM. 


102 


BISTORT  OF  THK  COLONIES. 


[book  I. 


free  and  common  socage,  an<)  not  in  capiu.  It  then  erect«d  »U 
the  territory  into  an  independent  Province  by  the  name  of  Geor- 
gia. It  authorized  the  tmfltees  for  the  term  of  twenty-one  years 
to  make  laws  for  the  Province  "  not  repugnaut  to  the  lawa  and 
statutes  of  Kn;;land,  subject  to  the  approbation  or  disallovance 
(^  the  crown,  and  after  such  approbation  to  bo  valid."  Tlieaflfaim 
of  the  corponition  were  ordinarily  to  be  managed  by  the  comiuoa 
council.  It  wiu)  further  deelurud  that  all  pensuntt  born  in  the 
Province  should  enjoy  all  iho  privilege*  and  immunities  of  ual- 

|Iiral-bom  ttitbjix-ts  in  (ireat  Britain.  Tiiberty  of  conscience  was 
kllowed  to  nil  inltubitanta  in  the  worabip  of  Ood,  and  a  free  exer- 
cise of  religion  to  all  persons,  except  Papists,  llie  corporation 
were  also  authorized,  for  the  term  of  twenty-one  years,  to  ereet 
courts  of  judicature  for  all  civil  and  criminal  causes,  and  to  ap- 
point a  governor,  judges,  and  other  niagistrales.  The  regintra- 
tion  of  all  conveyances  of  the  corporation  was  also  provided  for. 
The  governor  was  to  take  an  oath  to  observe  all  the  aets  of  Par- 
liament relating  to  trade  and  navigation,  and  to  obey  all  royal 
instructions  pursuant  thereta  The  governor  of  ^utb  Carolina 
was  to  have  the  chief  command  of  the  militia  of  the  Province; 
and  goods  were  to  be  imported  and  exported  withmit  touching  at 
any  port  in  South  Carolina.  At  the  end  of  the  twenty-one  years 
the  crown  was  to  ealablish  such  form  of  government  in  the  Prov- 
ince, and  such  method  of  making  laws  therefor,  aa  in  ita  pleasure 
should  be  deemed  meet;  and  all  officers  should  t>e  then  appointed 
by  the  crown. 

§  144.  Such  is  the  substance  of  the  charter,  whicli  was  ohvl> 
uuitly  intended  for  a  temporary  duration  only ;  and  the  first  meas- 
urea  adopted  by  the  tru8te<-B,  grunting  lands  in  tail  male,  to  be 
held  by  a  sort  of  military  service,  and  introducing  other  restric- 
tions, were  not  adapted  to  aid  the  original  design  or  foster  the 
growth  of  the  colony. ■  It  continued  to  lan^itsh  until  at  length 
the  truRteea,  wearied  with  their  own  labors  and  the  complaints  of 
the  people,  in  June,  1751,  aurrenderod  the  charter  to  the  crown.' 
lenceforward  it  was  frovemed  as  a  roj-nl  Province  enjoying  the 

^tame  liberties  and  immunities  as  other  royal  provinces;  and  in 
proc«w  of  time  it  l>egan  to  flourish,  and  at  the  period  of  the 

1  Ihnbalt't  Colon,  cb.  *,  pp.  SfS,  St9,  SSO ;  1  HoIiom'*  Aiib>1«,  4-15 ;  S  Hvmi** 

ath  C*r.  41.  It,  4S. 

*  S  HoIbim'*  Auwli,  id. 


CB.  XT.]  OEOROIA.  108 

American  RerolutioQ  it  bad  attained  coosidci-able  importance 
among  the  colonies.' 

§  145.  In  respect  to  ita  ante-reToluttonary  jurisprudence,  a 
few  remarks  may  suflice.  The  British  common  and  statute  lav 
lay  at  the  foundation.'  The  same  general  system  prevailed  as 
in  the  Garoliuaa,  from  irhich  it  sprung.  Intestate  estates  de- 
scended according  to  the  course  of  the  English  law.  The  regis- 
tration of  conveyances  was  provided  for,  at  once  to  secure  titles 
and  to  suppress  frauds ;  and  the  general  interests  of  religion,  the 
rights  of  representation,  of  personsj  liberty,  and  of  public  jus- 
tice, were  protected  by  ample  colonial  regulations. 

>  StokM's  Hitt  of  C«loiu(«,  IIS,  IIS  j  3  Uewttt'i  Sonth  Cw.  1«S ;  S  Holnioi'i  An.- 
ualc,  U,  117. 

■  StokM'i  Hut.  of  Colon.  110, 18S. 


104 


HiarOKT  OF  THE  COLONIST 


[■O0HL 


CHAPTER  XVI. 


OBNERAL  BEVTgW  OP  THE  COLONIES. 


§  146.  We  have  now  finished  our  «urver  of  the  origiD  and 
political  hiator)-  of  tho  coloiiieB,  and  here  we  may  pauiw  for  & 
short  time  for  th«  purpose  of  some  general  reflectionn  upon  the 
subject. 

§  147.  Plautations  or  colonies  in  distant  countries  are  either 
such  as  are  acquired  bjr  ooiupying  and  peopling  dceert  and  un- 
cultivated regions  b;  cmigrationfl  from  tho  mother  country,'  or 
such  OS,  being  ali-eady  cultivated  and  organized,  are  acquired  by 
oonqucst  or  cession  un<ler  treaties.  There  in,  however,  u  differ- 
ence between  these  two  npecics  of  colonies  in  reiiix>ct  to  tJie  laws 
by  which  they  are  governed,  at  least  according  to  the  jurispru- 
dence of  the  common  law.  If  un  uninhabited  country  is  discov- 
ered and  planted  by  British  subjects,  the  EngliRh  laws  are  said 
ta  be  immedinU-ly  in  forec  there;  for  the  law  is  the  birthright  of 
every  subject  So  that  wherever  they  go  they  carry  their  laws 
with  them;   and   the  ncw-fmmd  country  is   giivemed  by  them.' 

§  148.  This  proposition,  however,  thuugli  luid  down  in  such 
general  terms  by  \'ery  high  autliority,  requires  many  Itmitationa^ 
and  is  to  be  understood  with  ninny  rcstnelions.  Such  colonists 
do  not  carry  with  them  (he  whole  bc^dy  of  the  English  laws,  as 
they  then  exist;  for  many  of  tlieni  must,  from  the  nature  erf  the 
case,  be  wholly  inapplicable  to  their  situation,  and  inconsistent 
with  their  comfort  and  prosperity.  There  is,  therefore,  tliis  ne- 
cessary limitation  implied,  that  they  carry  with  tlicm  all  the 
laws  applicable  to  their  situation,  and  not  repugnant  to  Uie  local 
and  political  circumstances  in  whicli  they  are  placed. 

§  149.  Even  us  thus  Htated,  the  proposition  is  full  of  vagueneM 
and  perplexity;  for  it  must  still  remain  a  question  of  intrinsic 
difficulty  to  say  what  laws  arc  or  are  not  applicable  to  their  sit- 
uation ;  and  whether  they  arc  bound  by  a  present  statu  of  things, 

>  1  BL  Caam.  107. 

«  3  P.  Vm.  rs :  1  BL  Contm.  lOT ;  £  Silk.  411 ;  Con.  Dig.  Uj.  C;  lUs  ». 
Ta«glua,  4  Barr.  8.  tSOO ;  Chitty  am  ?nng.  cb.  3,  ]>.  t».  Ac 


CH.  XVI.] 


OtLNKBAL  REVtCVr. 


105 


or  are  at  libertj*  to  apply  the  la«>'!*  in  future  by  adoption,  on  tho 
Xrowth  or  iuteresta  of  the  colouy  may  dictate.*  Tlie  English 
mies  o(  inheritaitop,  and  of  protection  from  penwiiiil  tDJunes, 
the  ri;^t8  secured  by  Magna  C'harla,  and  the  rotiKiIial  course  in 
tlie  adminint ration  of  justice,  are  exaniflcfl  aa  clear  perhajis  as 
any  which  can  be  stated  aa  preaiunptivcly  adopted,  or  a]>plicabte. 
And  VL'l  in  Ujc  infancy  of  a  colony  Kome  of  these  very  rir^it^  and 
privikycs  and  remedica  and  rules  may  bo  iu  fact  inapplicable,  or 
.  incuuvenient  and  impolitic.'  It  U  not  perhaps  caay  to  settle 
what  purtii  of  the  EuK^tdi  laws  are  or  arc  not  in  f<(i-e«  in  any 
auch  colony,  until  cither  by  usage  or  judicial  dctenikiiiation  tliey 
hare  been  recognized  aa  of  abaohitc  force, 

§  150.  lu  rcs[icct  to  cutK)iiered  and  ceded  countric*,  which 
have  already  lawg  of  their  own,  a  difTercnt  rule  prcvaila.  In 
such  cases  the  crown  baa  a  rif^t  to  abrogate  the  former  laws  and 
institute  new  ones.  But  until  such  new  laws  are  promulgated, 
the  old  laws  and  customs  of  the  country  remain  in  full  forc«,  un- 
less BO  far  as  they  ai-o  contrary  to  our  reli^on,  or  enact  anything 
that  is  malum  in  ae;  for  in  all  auch  caacs  the  laws  of  the  con- 
quering or  acquiring  country  ahall  prevail.  This  qualiiication  of 
the  rule  arises  from  Che  pi-esuniptiou  that  th.e  crown  could  norer 
intend  to  sanction  laws  contrary  to  religion  or  sound  morals.* 
But  although  the  king  baa  thuH  the  power  to  change  tlie  lawa  of 
ceded  and  conquered  countries,  the  power  is  not  unlimited.  Ilia 
legislation  is  subordinate  to  the  authority  of  Parliament  Ug 
cannot  make  any  new  chang«  contrary  to  fundamental  principles; 
be  cannot  exempt  an  inhabitant  from  that  |>artictilar  dominion, 
as  for  instance  from  the  laws'  of  trade,  or  from  tlie  jwwer  of  Par- 
liament; and  he  ciinnot  giTu  bim  privilegea  exclusive  of  other 
anbjecta.  * 

§  l-^l.  Hr.  Justice  Blackstonc,  in  his  Commentaries,  insists 
that  the  American  colonies  are  principally  to  be  deemed  con> 
<]U«red,  or  ceded  countries.     His  language  is,  "Our  Americoa 

>  t  Bl.  Cuinm.  lOT  :  i  MtrinU,  B.  liS,  ISO. 

•  I  BL  CooiiB.  107  ;  I  Twlier'*  BiMk.  note  H  87S,  SS4,  Umf-it  Burr.  B.  ZSW  i 
2  Umvalc,  R.  1«3,  1}T,  IM ;  3  WiImi'*  Uw  Led.  »  lo  $1. 

•  Bknkaid  >.  G^y,  4  Mod.  «>:  •.  D.  t  SaUt.  411.  tlS;  3  Pcera  Vtit  75;  I 
Dkok.  CoMin.  107  ;  Campbell  %  Hall,  Cowp.  B.  SO*.  K»,  CaMn'a  CuHt  7  Co.  1, 17  A  i 
Com.  DlK.  Kiitpllon,  0.  1,  S  ;  Id.  Uy.  C. ;  i   bvrr.  B.  iiOO  ;  2  U«fi<ralc,  R.  lU, 

U7.  las. 

•  OuBpbaU  *.  Hall.  Covp.  B.  SOI,  «» ;  CUUj  <m  Preng.  ch.  3,  p.  89.  ««. 


106 


UieTOItr  or  THE  COLONIES. 


ttoMi. 


plttnMiOBM  vn  principally  of  this  latter  aort  [that  in,  ceded  or 
oonqiwred  oonntrii^Hj,  lining  obtained  in  the  last  century  either 
by  right  of  comjiipat  and  driving  out  the  natiTes  (with  what  nat- 
urnt  jimtice  I  shall  not  at  present  inqiiirt'),  or  by  trcatii-tt.  And. 
therefore,  the  common  law  oi  England,  as  suob,  hna  no  allow- 
ance or  authority  there;  they  being  no  part  of  tlio  mother  coun- 
try, butdifltinot,  thmipJl  dependent  dominion*."' 

§  162.  There  is  great  rcaa^m  to  doubt  tlic  &<.-<:ursoy  of  this 
statement  in  a  k-gal  view.  Wu  )iave  nln^udy  «c<on  that  the  Eu- 
ropean nations  by  whom  America  waa  colonized  treated  the  sub- 
ject in  a  very  diflorent  mannt-r.'  They  claimc-d  an  absolute 
dominion  ovvr  tlic  whole  torritonca  afterworda  occnpivd  by  them, 
not  in  virtue  of  any  conquest  of,  or  ccasion  by,  thv  ludian  na- 
tivca,  but  as  a  rij^ht  acquired  by  diseovury.*  Some  of  tbcm, 
indeed,  obtained  a  sort  of  confirmatory  grant  from  tJie  papal 
authority.  But  »a  botwccn  Ihomselvca  they  trcat«d  the  dominion 
and  title  of  territory  as  resulting  from  priority  of  discovery;* 
and  that  European  power  which  had  first  discovered  the  country 
and  s«t  up  marlcs  of  |>os«es9ion  wag  deemed  to  bare  gained  the 
right,  though  it  hnd  not  yet  formed  a  regular  colony  there.* 
Wc  have  aUo  aeen  that  the  title  of  tlte  Indiana  was  not  treated 
aa  a  right  of  (iropricty  and  dominion,  but  ua  n  mere  right  of  oe* 
cupaitcy.*  A«  infidels,  heathen,  and  Bavagea,  tljcy  were  not 
allowed  to  possess  the  pmrogatirea  l>oloRging  to  absolute,  sover- 
eign, and  independent  nationa.^  The  territory  over  which  they 
wandered,  and  which  they  used  for  their  temporary  and  fugitive 
purpoeet,  voa,  in  respect  to  Christians,  deemed  as  if  it  were  in* 
habited  only  by  brute  onimula.  There  is  not  a  single  grant  from 
the  British  crown,  from  the  earliest  of  Elizabeth  down  to  tlie 

1  I  Rl.  Crtniii.  107 ;  Chltty  an  Pitroff,  rli.  S,  p.  2», 

■  Sm  ami.  pf^  1  U> » i  1  CUliB.  AtOMix,  ait :  t  Wilton'i  Worka,  23*. 

•  vittri.  B.  I.  ch.  IS.  H  >os,  M«,  »7.  aoe,  M». 

•  JobtuM  V.  Mclotoih.  S  WiMt.  S.  HS,  STd,  WO. 

•  IVna  r.  tjud  B^IUmm,  1  Vc«.  ui,  451. 

•  9  K«nt->CM>m.  SOS  to  SI3:  1  CUa.  AsMb,  97*,  «77  ;  t  JeBtnoa't  Cam^ 

4T9 :  WoiTMtor  r.  a«argb,  S  PwUn'«  R.  MS. 

'  To  do  but  juMic*  to  thoM  Umt*.  ft  ti  frapcr  to  •(•(•  that  thii  fnttntm  did  not 

obula  MiiTenaU  tpfmlatSon.    Ou  Ibe  conlmy,  tt  >m  oppewd  by  ••■>•  of  th*  laoM 

kUghUnod  moleriuiica  uid  pliilocofihatm  of  titom  dayi, «  n^JMt  ttu\  ahKanl  ;  ami  e^ 

[  femOj  bf  two  flpMtub  writen  of  emuuuit  worth.  Soto  ukd  Victerih.    Sre  Sir  June* 

,  MelatMb'*  Flrgurt  UmUm  m  tha  Pnipta  of  BOiImI  PhikMopb;.  FhiUiMphia  odiL 

t  JSSI,  |>^  ««.  SO. 


ca.  in.] 


OEXERAL   BKTIEW. 


lOT 


I 


latest  of  George  the  Second,  that  affects  to  look  to  any  title  ex- 
ce[>t  that  founded  on  diacovery.  Conquent  or  cession  in  not  once 
alluded  to.  And  it  is  imfiossible  that  it  should  have  been;  for 
at  the  time  whc-n  all  the  leading  grant*  were  reapcctireljr  made, 
there  had  not  been  a.ay  couqurat  or  evasion  from  the  natives  of 
the  territory  comprehended  in  those  grants.  Even  in  respect  to 
the  territory  of  New  York  and  New  Jersey,  which  alone  afford 
any  pretence  for  a  claim  by  conquest,  they  wore  conquered  from 
the  Dutcli,  and  not  from  the  natives,  and  were  coded  to  Kngland 
by  tlie  treaty  of  Bredu  in  1667.  But  England  claimrd  this  very 
territory,  not  by  right  of  this  conquest,  but  by  Ihc  prior  right 
of  discovery.*  The  original  grant  was  made  to  the  0uke  (rf  York 
in  1G(>4,  fijundod  upon  this  right,  and  tlio  subsetgucnt  confirma- 
tioQ  of  his  (ilJc  did  nut  depart  from  the  original  fouuduttun. 

§  158.  Tito  Indiana  could  id  no  just  sense  be  deemed  a  con- 
quered people,  who  had  been  stripped  of  their  territorial  pOMCB- 
sions  by  superior  foree,  Tliey  were  cunsidenMl  us  a  people  not 
having  any  regular  laws,  or  any  organised  govcmmont,  but  na 
more  wandering  tribes.'  They  were  never  reduced  into  actual 
obediencCf  as  dependent  commnniiic*;  and  no  scheme  of  general 
legislation  orer  them  was  ever  attempted.  For  many  purposM 
they  were  treated  as  independent  communities,  at  liberty  to  gor- 
cm  themselves,  so  alwa>*s  that  they  did  not  interfere  with  the 
panuncmnt  rights  of  (he  European  di8coverers.*(a) 

§  154.  For  the  most  part  at  the  time  of  the  first  grants  of  the 
colonial  charters,  there  was  not  any  posaeaaion  or  occupation  of 
the  territory  by  any  Dritish  emigrants.  The  main  object  of 
these  charters,  as  stated  in  the  preliminary  recitals,  was  to  tn- 
Tlt«  emigrations,  (o  (Hwple  the  country,  to  found  coltmies,  and  to 
Christianize  the  natives.  Even  in  caso  of  a  conquered  coimtry, 
whore  there  are  no  laws  at  all  exisltug,  or  none  which  are 
adapted  to  a  civili7.ed  community,  or  where  the  laws  arc  silent, 
or  are  rejected  and  none  substituted,  the  territory  must  bo  gov- 
erned according  to  the  rules  of  natural  equity  and  right     And 

<  4  WbMUin,  Srt.  070,  CM.  8m  iln  1  TdoIe.  Black.  Appi.  833  :  1  Chilin.  Aa- 
iHbi.«ra. 

»  V«ft«l,  B.  1,  rh.  IS,  a  S08.  S09  ;  S  Kent'.  Cmam.  112,  SIS. 

•  t  WWat.  B.  6»0,  SOI,  SM  :  I  GtabaBt'o  HUL  of  Awmkm,  44 ;  2  K«dI'*  CMain. 
311  •  W«tmrtcr  *.  State  oTODor^a.  t  PkUn**  Su|k  Cl.  Bapi.  SIS. 


(a)  Uaclcsy  «i  Coxe.  IS  Hov.  104  :  Vlmt.  lot  Law,  pt.  1,  ob.  S,  {  If. 


108 


RISTORT  OP  TB£  COLONIES. 


£booe  I. 


Englishmen  removing  thither  must  be  deemed  to  carrjr  vith  them 
those  rights  and  pririlegea  which  belong  to  them  in  their  natire 
country. ' 

§  15o.  The  rory  ground,  therefore,  aHSumed  by  BoglsQd,  u 
tho  foundution  of  )t«  title  to  America,  and  the  iiivitatiuuii  to  its 
own  subjects  to  people  it,  carry  nlungwith  them  »  ncccwary  im* 
plicatiou  tliat  the  plantationa,  BithM^uently  fonnod,  were  to  b« 
de«med  a  part  of  tlie  ancient  domininnii;  and  the  subjects  inhub- 
iting  them  to  belong  to  a  comuiou  country,  and  to  i-etain  their 
former  rights  and  privileges.  The  government,  in  it«  public 
policy  and  arrangements,  as  well  aa  in  its  chartvrti,  proclaimed 
that  the  colonies  were  establiahed  with  a  view  tu  extend  and  en- 
large the  boundaries  of  the  empire.  The  culoniea,  when  »>  formed, 
became  a  part  of  tlie  atato  equally  with  ita  ancient  poit»c»iiuiui.* 
It  is  not,  therefore,  without  strong  reaaoo,  that  it  has  been  aaid 
that  "the  coloniots,  continuing  lu  much  subjects  in  the  now  es- 
taliiiehQiciit,  where  they  had  freely  placed  themselves  ^with  tho 
consent  uf  tho  crown],  ta  tlicy  had  bvcn  in  the  old,  carried  with 
tlicm  their  birthright, — tlie  laws  of  their  oountr}',  bocauso  the 
customs  of  a  free  pei^ple  are  a  part  of  their  lilwrty;"  and  Ibat 
^the  jurisprudence  of  England  became  that  of  tbo  cotoiiiva,  ao 
far  as  it  wits  applicable  tu  the  situatiun  at  which  they  had  newly 
arrived,  because  they  were  liugliahmen  residiug  within  a  distant 
territory  of  the  empire."'  And  it  may  be  added,  that  as  there 
were  no  other  laws  to  govern  them,  the  territory  was  necessarily 
treated  tus  a  deserted  and  unoccupied  country,  annexed  by  dis- 
covery to  the  old  empire,  and  composing  a  part  of  it.*  Morcu\-er, 
even  if  it  were  possible  to  consider  the  case  as  a  case  of  con<|uest 
from  the  Indians,  it  would  not  follow,  if  tJio  natives  did  not  re- 
main there,  but  deserted  it  and  left  it  a  vacant  territory,  that  the 
rule  as  to  conquests  would  continue  to  apply  to  it.     On  the  con- 


■  S  Snlk.  in,  4I>.    S«  dM  Hin  *.  Ounptxll.  Ooiqk.  R  Ml.  Ill,  213 1  1  CWIm. 
Aon.  It.  13,  STS,  67iVS3».  SOO ;  1  Clulnt.  OpioMU,  lUI  j  «  CUbb.  Optniooi,  tOti 

Oiitty  an  Ptrroa.  rl.,  S  ;  S  Wiiim'*  Iaw  L»cI.  48,  49. 

*  Vallt-1,  B.  1,  tb.  ]«,(  aW;  1  Cballa.  Aaiud*,  S7«,  Sr7,  S7B,  «7*i  8  WhaU.  R. 
9SS;  Gratini.  B.  3,  eti.  9,  f  10. 

■  I  Cluliii,  .^R».  677  i  U.  II,  U,  MS  1  S  VilMo'a  U*  Uct  IS,  t» :  S  Wikon's 
L.tw  lATt.  £31.  a»5. 

•  Raberdou  >.  Rmu,  1  Alk.  R.  SIX.  Sll  |  V4a^Ma.  R  SOO.  «W ;  Show.  Pttri.  Cm. 
31 1  8  WhMl.  n.  t»i ;  I  Tuck.  BlMk.  Conue.  Atip  S»S,  a&l ;  Dumnwr'i  Ovbac^  I, 
Amnicu  Tneta,  IS. 


CH.  IVI.] 


gekhBjIL  asviEW. 


J09 


tran-,  aa  soon  as  tlie  crown  should  choone  to  found  an  English 
colony  in  such  vacant  territorr,  the  general  principle  of  »ettle- 
incnta  in  destrt  countricti  would  govern  it  It  would  cease  to  be 
a  cunqurat,  and  lx.-comu  a  colony,  and  aa  Buch  bo  affected  )>}-  the 
Britiah  lava.  This  doetriuo  is  laid  don-n  with  great  clearneaa 
and  foR-o  by  Lord  HunaGeld,  in  bis  celebrated  judgment  in  Hall 
V.  Campbell.'  In  a  still  more  recent  case  it  was  kid  down  by 
Lord  EUcnborougli  that  the  law  of  England  might  properly  be 
cognizH  by  Biibjccts  of  England  in  a  place  occupied  tcroporfir 

^Tily  by  British  troopa,  who  would  impliedly  carrj  that  law  with 
them.' 

§  156.   The  doctrine  of  >Ii-.  Justice  Blackstone,  therefore,  may 

i-irell  admit  of  Berim»  doubt  n]>on  geiiernl  principles.     But  it  is 
aanifestly  ei'roneous,    »o  far   as  it  is  applied  to  the  colonies 
snd  plantations  composing  our  Union.     In  the  chartera  under 

ywhich  all  these  colonies  were  settU'd,  with  a  single  exception,* 
tierc  is,  as  hoH  Ir-cii  already  seen,  an  express  declaration  that 
all  subjects  and  their  children  ioluibiting  therein  shall  be  docmcd 

.  Outural-liom  subjects,  and  shall  enjoy  all  the  privilein^s  and  im- 

'niunitics  thereof.  TItere  is  also  in  all  of  tJicm  au  ciipress  re- 
striction that  no  laws  shall  be  made  repugnant  to  those  of  Eng- 
land, or  that,  as  near  as  may  be  couTcnieutly,  they  shall  be 
consonant  with  and  confurniable  thereto;  and  cither  expressly  or 
by  necessary  implication  it  is  provided  that  the  laws  of  England 
so  far  as  applicable  shall  i>e  in  force  ihere.  Now  this  dwlara- 
tion,  even  if  the  crown  previously  posseaaed  a  right  to  eatabUsh 
what  laws  it  pleased  over  the  territory,  aa  a  conquest  from  tho 
nati^'es,  being  a  fundamental  rule  of  the  original  acttU-mcDt  of 
the  colonies,  and  before  the  emigrations  thither,  was  convluaive, 
and  could  not  afterwards  he  abrogated  by  the  crown.  It  was  an 
irrevocable  annexation  of  tho  colonies  to  the  mother  country,  M 
dependencies  governed  by  tho  same  laws  and  entitled  to  the  same 
rights.* 

5  167.   And  BO  has  been  tho  uniform  doctrine  in  America  ever 
since  the  Bettlement  of  tlie  colonies.     Tha  universal  principle 

1  Oaw^R.90(,  911,  IIS. 

•  B«x  *.  Bramploii,  10  Ewt,  R,  8SS,  »SS,  t$*. 

■  That  af  PtAiuylTUiU,  1  Gnbuae'*  HM.  41,  note ;  1  Ciaim.  Anoali,   11,  IS, 
«3ab  MS.  tSS  ;  3  Wnwn'i  Uw  LmL  48,  40. 

*  6tak*-»  ColMt.  SO  i  Holl  c.  Ctepbd,  Omh^  B.  Ml,  112 ;  1  Txk.  Block.  Conun. 
Aff  US,  8M ;  CHUj.  Pieng.  8S,  SI. 


uo 


niSTORT  OP  THB  C0L0ME8. 


[book  I. 


(and  the  practice  ban  conformed  to  it)  hu  been,  that  the  com- 
mon law  iit  our  birihri^t  and  inheritance,  and  that  o»r  ances- 
tors brought  hither  with  them  upon  tlieir  emigration  all  of  it 
which  was  applicable  to  their  situation.  The  whole  structure  of 
our  present  jurisprudence  stands  upon  the  original  foundational 
of  the  common  law.'  (a) 

>  Not»ilhitu<]tiig  tbfl  cleanirai  of  tlib  doctrine,  troth  from  Ike  lutguagB  of  the 
eliuMnind  tlio  whole  count  of  judicial  dvditoii*,  Ur.  J<Jf«non  hu  treitad  it  vitliui 
'  extraordiaaTjr  ilrgrra  of  dnition  it  not  of  contempt.  "  I  dtridc,"  uys  lie, ' '  witli  jrou  the  | 
ardiiiarjr  dortrine,  that  wo  bronjht  with  i»  from  Kngland  ibc  «iiiiinon-!aw  rights. 
This  narrau!  nrfun  Wu  ■  /iiunft  in  thn  flnt  monirnt  nf  mllyinji  to  our  ri)[hu  i^Dat  J 
Gmt  Britain.  But  it  wu  that  of  mm  wliu  fxll  tlii-if  rl^tiU,  iH-foru  Ihuy  had  thoo^t 
of  their  explanation.  The  tnitli  ■»,  thul  up  brought  with  an  llie  rigblit  of  uwd,  of  «x- 
pttriattd  mm.  On  our  arrind  hen  the  qumtioii  would  at  once  arine,  hy  what  law  will 
W  govern  onrMln*  r  The  naolutlan  tKmt  to  bare  been,  hy  that  ijiUna  wttb  whkh 
we  un  bmiliui  to  be  alttml  hj  onnwIvM  oocaMonally,  and  ad^ilcd  to  odi  new  litua* 
tion,"    i  Jtflenon'ii  Corrapk  178. 

HowdUTcrmtlydid  theCongKMof  1T74  thwlc   Tti()r<iiMiwMMU^nMli«d."Tbat 
lit*  iMpwIlTe  colonlee  are  entitled  ta  tit  eamneit  taio  ^  Sngtaa^  utd  men  etpedeUy 
to  th«  gTMt  and  inattiauable  pridlep  of  halng  tried  by  their  peon  of  tha  lidaagifi 
awording  to  the  oonne  «f  that  taw."    Th^  farther  rwdvnl,  "that  they  were eMllMJ 
to  the  benoAt  of  nicb  of  the  EogUili  ttalntwuexblfd  at  ibetimeof  tbriroolaabatSsat. 
and  wkich  tboy  hare  by  expMicnoe  napodivdy  bund  lo  he  apidicaUe  to  their  tertnl  j 
and  local  cininiuttaucmk"    Tbry  alw  TtadTed,  tlwt  iLelr  UKMton  at  tke  time  «f  tbtlr  | 
emigntian  were  "tulilM"  {aot  tothe  ri|{httariiwn,  of  et]«trial«dnna,  but)  "tnatl 
the  right*,  tibertin,  and  inmunitin  of  fne  and  naturai-bom  Mbjcct*  with'.a  tha  mtlm 
of  RngUnd.  ~    Joomal  of  CongroH,  Dedaiatioa  of  Ri^Ia  of  tha  ColonUa,  Oct.  II,  1 774, 
n>.  S7  lo  31. 

1  Chalm.  Opinfone,  90^  220,  39S ;  1  Oialiii.  Anab,  «T7,  «81.  ttS  1 1  TWfc.  BImIc. 
ComtD.  SSI :  1  Kent't  Couin.  SSS ;  Joamal  oTOongma,  IT74,  pft.  38,  SS ;  t  Wlbon'* 
Uw  Uct.  ii,  <S.  y>:  I  Tnck.  iUaok.  Comn.  App.  380  to  S81 ;  Vaa  Keaa  w.  Pnckud, 
i  Pttcra't  Sap.  R.  1S7, 14i. 


<«)  Mr.  Jadtnoo,  m  will  he  Mta  fren 
tin  •inotatioa  abore.  iU  not  qiwatkn,  bat 
«i|T»wily  iatrt«l,  that  the  Engliih  ooin- 
■MO  law  waa  in  foroe  In  tha  eohMtM ;  t«t 
h»  «f«*fca  of  it  •«  having  beta  a«o*pt«<l  hj 
the  osbniati,  «bo  night  on  tbeotlMrhand 
hare  diMtii  to  rqact  it.  nirthct  oa  i»  the 
•one  letter  (l«  Jodga  TyWr,  JedmoB'i 
Worita,  ILeSfheiay*:  "Theunteof  tha 
bgUih  Uw  ■!  the  date  of  «ar  fcnlpalien 
OHwUtittnltliaiyUamMliyilatlHC*."  And 
is  hie  Hole*  c«  Vii^iua  he  nyi:  "Tbe 
Uw««IEn||laDd  «oe«  t«htTebeeaaAv«crf 
by  coMtent  of  the  Kitten,  whidi  Might 
eaaUy  enoo^  hat*  been  dose  whflat  they 
were  hw  H>d  living  all  together.    Of  (itch 


adoption,  however,  we  hare  no  othcf  proof 
thn  their  practice  till  the  jear  IMl,  when 
Ihcy  vece  exprnaly  iada|Ud  bjr  an  act  a(^ 
the  teeetably,  aiotpt  •»  hr  aa  '  •  differ*  < 
•HI*  «f  condiikin '  ramlefvl  then  InapfiU'  j 
cable.-  J««M0M't  W„tkt.  VIII.  S74. 
aleo  Ibid.  IX.  *St.  Vb*-^  at  the  biMkl 
oat  of  the  BeTolution,  the  law*  were  n>- 
TMed  by  ■  eoamMoB,  of  whldh  Mr.  Jef. 
(•r*OB  wai  a  member,  tlie  common  taw  of 
England  wai  made  the  baai*  of  the  reria- 
ion.    JtSnaoM-a  Worka,  VIII.  179.    The 
tnw  mle  *•  to  the  estaBl  to  wUch  tbe 
oewnnon  law  pvrallal  In  the  eolonim  te  | 
thai  Matfd  by  Ur.  Sailkt  Story,  in  on* ' 
of  U>  JodiaUl  deciriom.   "  The  eommaa  ; 


CH.  XTl.] 


ORfERAL  RErtew. 


Ill 


§  158.  We  thus  Beo  in  B  very  clear  lt.?ht  the  mode  in  which 
the  oommon  law  wus  first  intnxtucod  into  the  colonies;  us  well 
08  tho  tTU«  rea«on  of  the  exceptions  to  it  to  be  found  in  our  colo- 
nial usages  and  luwa.'  It  wax  not  introduced  as  of  orifpnul  and 
universal  oMigation  in  its  utmost  latitude;  but  the  limitatioDS 
contained  in  the  bo«om  of  the  common  law  ilKvIf,  and  indeed 
constituting  a  [lart  of  tho  law  of  nations,  were  affirmativclj-  »ct< 
tied  and  recognized  in  tlie  respective  charters  of  settlement 
Thus  limited  and  defined,  it  has  become  the  guardian  of  our^>o- 
liticat  and  civil  rights;  it  has  protected  our  infant  liberties,  it 
has  watched  over  our  maturer  growth,  it  has  expanded  with  our 
wants,  it  has  nurtured  that  spirit  of  independence  which  checked 
the  first  apprQa<^hefl  of  arbitrary  power,  it  has  enabled  us  to  tri- 
umph in  the  midst  of  difficulties  and  dangers  threatening  our 
political  existence;  and,  by  the  goodness  of  God,  we  are  now  en- 
joying, under  its  bold  and  manly  principles,  the  blessings  of  a 
free,  independent,  and  united  goTommcnt.*(a} 

1  t  Wllaan'*  Luir  ]jteL  49  lo  55 ;  1  Tuck.  BIwk.  Comm.  App.  880  to  3St  i  1  Cteho. 
Opblonii,  tSO. 

*  The  quntteo,  whatli«r  th«  eommon  Uw  »  ^ipliMble  to  th«  I'nitisl  Stalis,  in  thcii 
ntttoiul  duractcr,  rdatioiii,  kad  ({oTiramcut,  Iim  bcm  moch  liiriiwiil  at  ilSeniA 


law  «f  EBKUod."  he  ttya,  "  u  not  to  be 
tsbm,  ia  all  mpcvU,  Iq  b«  that  of  Amtn* 
Um.  Oat  anctatont  bKnij^t  vtth  thini  Ita 
RMcnl  prindfdM^  and  rlalmiKl  it  u  tli«lr 
Mrtbrif^t;  bnttbe;  brought  with  th«ui 
•ad  adofittd  oaljt  that  portton  which  «aa 
apjilleabU  to  their  condlllon."  Van  Neat 
p.  PMlunl.  2  Pet.  HI.  SmoImi  Chtaholm 
V.  Oexagia,  t  Dall.  13S  ;  Town  of  Paolett 
*.  CUHc.  9  Cnneh.  1S3  :  Whcalon  v.  Pe- 
t«n,  8  Prt.  Ht.  The  acta  of  rarliammt 
paaad  aft«e  the  a*tU««n*ni  of  tho  AineriftUR 
(olMiv  wtrp  not  i>  fMtie  thtrrin,  iinlinii 
madt  M  bf  •^xpra•  wocdi  or  by  aduption. 
CMiumniwnilth  v.  Lodfcr,  t  Oratt.  GTO  ; 
IVmble  K  ainbrd.  !  HntVinl.  SI.  S«4 
abo  Bakw  >.  UatI'Mk*.  Quincjr,  73 ; 
Uatheart  rr.  BoUiMan,  B  Pet.  380 ;  Swift 
«.  Towtey,  &  lad.  1M.  For  the  diBenat 
Tkw*  taken  by  Rnf^iali  aad  American 
■MaenMn  iipen  the  Midfeet  of  thi*  aot* 
prior  to  the  R«Tal»tioa,  tn  VorL*  of 
riwklin.  by  Rperks  IT.  3;i. 

lai  "  It  fa  deu,"  Mfi   &tt.  Jaitlce 


McLcen,  in  Wlimton  v.  Pelerx  8  Ptt. 
0S8,  "  that  thera  out  be  no  canunoQ  law 
of  the  ClaiUd  ^latn.  The  Fodcnl  |or. 
ernuioDt  ia  cDm{>niml  of  tw«nty-four  tover- 
ei^i  anit  InJrp^ndenl  i^latra  ;  eai-h  of 
whiuh  Ilia/  Iisvi<  it!  local  luugr*.  ciutoni!), 
and  common  law.  Thcn>  ii  do  pnuci|i1e 
wht«h  pcntndo  tho  Union,  and  hu  th« 
BBtharity  of  la«,  thnl  Ix  not  rnibodictl  in 
the  Cuuititutiun  ur  Inin  of  the  Union, 
Thu  comoton  law  could  be  m&dc  a  part  of 
OUT  fedeni  ayatem  only  by  Ufpilatirt 
adoption.  Whun,  ihvnirorv,  *  conimun- 
law  ri^ht  ii  au«rt<<d,  we  luuat  look  to  tbe 
State  iowhich  the  con trannyotigiaatcd." 
8or  to  tho  aamo  effect,  Kendall  e.  tlBitad 
BtatM,  13  Vtt-  yu  ;  Uman  r.  Clarke,  2 
)loLMa,9««.  ThcnronlheUniteJStaM 
awnot  emtcbe  ft  oenoMa-law  jumdiction 
tn  etiminal  ca»«.  Confteaa  mait  fltat 
nuke  ail  act  «  crime,  afllx  a  paaUknuBt 
to  it,  and  deelan  the  mart  that  aholl  Imtb 
jnifadiMiciii  d  the  offraoe,  before  each 
oonrt  «a  take  ocgnUanot  Iheneot.  Cntiid 


112 


HISTOer  OP  THE  OULONiEih 


[aooKL 


pntoi*  or  Ibo  gDnmractnt,  principatlj,  bowanr,  with  ntetmat  to  ih»  JuiUdlctlon  ud 
|iiiDuliiaeiitof  cwnmam-Uir  ofTononb}-  tha  oouils  cT  tha  <?nll«il  8ui«*.  It  leoali  bes 
meat  extTMrdinuy  lUIn  «( thin^  tlut  tbeocannon  I>«  ihouU  tn  thebaiUof  theJam- 
praiUnw  of  du  StatM  oiigtaaDy  compomng  tb*  Union,  and  jct  &  go vmuirat  iagraTtad 
apon  the  oxkliiig  tfiitatii  Aonld  bar*  no  juriafcndesce  st  aU.  IC  nub  bo  Uu  iwntt, 
thtm  la  flu  gnU*  rniil  no  ruin  fur  tlio  oonrta  of  the  United  Statu*,  or.  Indeed,  (er  anj 
olh«r  department  oTgcmmiuvnt,  Id  IbeeoMtciaaofanjof  Ihn  powara  «onnd*d  to  thtm, 
exMpt  M  far  aa Congnsa  hai  Uiil,  or  aliall  lay, duvu *  ru l<i.  In  th«  inkinanae  maaaof 
righta  and  datiea,  at  rontnota  uul  cUiou,  growing  out  of  the  Contlitutioii  and  Uw*  of 
thcUnllod  Statn  (u]>on  wliich  podttTD  IfgidUion  baa  hitherto  done  little  o(  Milling), 
«h^  1*  the  rule  of  decialon,  and  intcirprot«tiiiii,  and  rtatnotioD  t  Snfipoae  the  iiMpleat 
MM  of  uoulraut  wilh  the  gavtmment  of  the  United  Statn,  how  ii  It  to  b*  •snabniad  ■ 
How  ii  it  to  be  irnformd  I  What  are  it«  uhligullaTit  J  Talo  an  act  of  Conpaw,  how 
i>  it  to  lie  interptrlfd  I  An  llie  rulMi  of  tile  common  taw  to  fimidi  Uie  proper  guiihv 
M  U  t/vwj  court  and  dopanmoit  to  giro  it  any  interpretation  it  majr  ftrw%  neaonliiig 
to  It*  own  aibltiuy  will  t  My  di'nign  ii  not  hem  to  tlitmia  the  anlject  ((«f  tiutvoold 
re<|uirearotuntv],liut  nthtrlnaiiKRiHt  wiineof  thrdlfficulllniattnidanlBpon  It.  Hiom 
noden  who  ars  deairoui  of  more  nmpU  iDfomutlon  are  rrfftT«d  to  Ditf«DMa«  on  the 
JwiHlletlon  of  the  Conrt*  of  the  Uuil«t  SUIea ;  to  1  Tocker'a  Black.  Camm.  App. 
DOtaE,  p^  879;  tol  Kent'a  Comm.  Lcct  10,  ppuSll  to  322;  totberepoKof  the  Vif 
ginis  kgbtlatui*  of  17»»-1SOO ;  to  tUwIe  on  the  ConRtltutlan,  di.  30,  ]k  ise ;  to  tW 
North  Amoiiotn  Kcview,  luXj,  ISIS ;  and  to  Mr.  Bayard'a  Spnadi  In  lh«  Pebataa  oo 
tlM  Jndiciarr.  in  ISOl,  p-  378.  ott.  Seme  other  tinuuia  iUuaBatiire  of  it  will  necoMf 
rily  artin  In  diiKuaiing  the  nitgect  of  impoicbinonta. 


SuUa  V.  Hudaon,  7  Ciuoh.  8S ;  Cnltod 
BtatM  *.  Lanarier,  S  UcLmi,  133 
Cnitad  Statu  r.  New  Bedfoni  Driiier, 
Wnod.  ft  U.  43£;  Unltn)  Stat**  v.  Wllaon, 
»  Blalck  136.  Unt  the  national  COUttl, 
•fttr  jnriadklim  koonfand,  am  to  look  to 


tod  fb 
S3;  toi 
,  t     (h 


:b»  mmmoB  hw,  Ln  tha  abaaneo  of  (Uto- 
ir]r  tffovinoni,  for  rvln  to  guida  tban  in 
ic  rxerda*  of  their  tnnetlaM,  In  crialBal 

a*  well  at  dril  caan.    ConkUa^  TMtiN, 

81. 


CB.  xvn.] 


GENERlt.  AETIEW. 


118 


CHAPTER   xvn. 


OEXERAt  RK^'UrW  01'  THK  COLOHIKS. 


§  1-59.    Ix  respect  to  their  interior  polity,  tiifl  coltMiien  hare 
m  very  properly  dirided  by  Mr.  Justice  illackatone  into  three 
r»orta;  nanjcly,  nroyincial  ppojingtary,  and  charj^r  (|otBmmiinty. 
Firtt,  provincial  eatabliahraeiita.     The  coiiHtitutiona  of  these  de- 
pended on  the  reB|)ectiTe  comniiBsiona  iaxued  by  the  crown  to  the 
aremora,  and  the  instnicttona  which  usually  accompanied  those 
cmunitisionii. '    Thc»«  cotDiniasions  were  luuully  in  one  form,' 
ppointing  a  governor  an  the  kio^'a  rcprvacntutivc  or  deputy, 
who  was  to  be  governed  by  tlic  royal  inatru<-tiom,  and  styling 
him  captuin-gcnenil  and  govcmor-in-^hicf  over  the  Province,  and 
ebancvilor,  viv«-udmiral,  and  ordinary  of  the  satno.     The  crown 
|tUo  appointed  a  council  who,  iK-sidoa  tlieir  legislative  authority, 
rere  to  assist  the  governor  in  the  discharge  of  bin  oificial  dutiirs; 
jid  power  was  given  him  to  t(U8|>ond  tliciit  from  ofRcc,  and  in 
ease  of  vacancies  to  appoint  others,  until  the  pleasure  of  tho 
^crown  should  l>e  known.     The  commiMions  also  contained  au- 
thority to  convent  n  general  assembly  of  representatives  of  tho 
freeholders  and  planters;*  and  under  this  authority  provincial 
assemblies  coniposetl  of  the  governor,  the  council,  and  the  repre- 
sentatives, were  constituted  (the  council  being  a  separate  branch 
or  upper  house,  and  the  governor  having  a  negative  upon  all  their 
proccedingH,  and  also  the  right  of  proroguing  and  diaiolving 
tbem);  which  asserablieB  had  the  power  of  making  local   laws 
^■nd  ordinaaoea,  not  repugnant  to  the  laws  of  England,  but  as 

t  SI.   Comn.  l«i  Stoke'a  Hut.  Colon.  30.  SS.  HP.  ISI.  MS:  Ompct'i  IL  »)7, 
^tlliCom.  Dig.  Havlgttlaa,  G.  li  1  Dong.  Sunm.  1«3,  M>te;  Id.  UI;  1  l>oii£.  Samm. 
!»7. 

*  SloltM'a  RM.  Colon.  It,  S3,  U9,  ISO.  IW,  184.  ISS,  101,  W.  902,  SST.  S3»:  1 
Bl.  Ccoun.  109.  Bukat  hu  gina,  Ln  Kit  Hislorjr  of  tbe  Cok-nin.  ch.  4.  p.  ll»,  tc, 
o«py  «f  one  cf  tbae  connmiMioo*.  A  oopf  b  >Ik>  ptdiKid  to  tlis  Prannckl  Ijnn  «t 
Krw  Kamiahiiv,  «dltioa  «f  1TS7.  8m  2  Hemtl'a  Uutoty  of  SMtll  CWoUm  and 
[^OtorgK  aad  A<conBt  of  tbt  ProrincUl  Oowraiawiti. 

<  SlokM'*  nbt.  Coloa.  lU,  137,  Stn.  W,  !49,  XSl;  1  Titk.  Rlit.  71;  I  OubDm*! 
\AMaila.  m.    8m  la  P«HI>nw«tU7  l>«t>MM,  Vol.  II.,  ror  17S1  (oU  Bdilion),  la  Ap- 
.  MfflM  of  tiM  Clurtm  or  ae  Atriw  CoIobIm. 
VOL.  t.  —  ft 


114 


BIBTOBT  OF  TBE  COLONIES. 


[book  I. 


near  as  maj  be  agreeable  thereto,  subject  to  the  ratification  aud 
disapproval  of  the  crown.  The  Kovvrnon  also  had  power,  with 
the  advice  of  cotincit,  to  e^tablisli  courts,  and  to  appoint  judges 
and  other  mai^ialratcs  and  ofliocre  for  the  Province;  to  pardon 
offences,  and  to  remit  fines  and  forfeitiirea ;  to  collate  to  churches 
and  benefices;  to  levy  military-  foi"cc6  for  defence;  and  to  execute 
martini  law  in  time  of  in^'asion,  war,  and  rebellion.'  AppeaU 
laj  to  the  king  in  cmmcil,  from  the  deciflions  of  the  higheat 
courts  of  judieatiir«  of  the  Pnirince,  an,  indeed,  they  did  from 
all  others  of  the  colonics,  tinder  thia  form  of  ^vemment,  the 
Provinces  of  New  IIani)Mhire,  New  York,  New  Joniey,  Virginia, 
the  Carolinas,  and  Georgia  were  povemvd  (as  wo  have  seen)  for 
a  long  period,  and  some  of  thorn  from  an  early  period  after  their 
settlement.^ 

§  160.  See^ndl^,  proprietary  govcmmentn.  Iliese,  as  we  have 
seen,  were  granted  out  by  the  crown  to  individuals,  in  the  nature 
of  feudatory  principalitira,  with  all  Uie  inferior  royaltic*  and 
atibordtnate  powers  of  legislation  which  formerly  belonged  to  the 
owners  of  counties  palatine^  Yet  still  there  were  these  expre«B 
GOnditiuns,  that  the  ends  for  which  the  grant  was  made  should 
be  substantially  pursued ;  and  tliat  nothing  should  be  done  or  at- 
tempted  which  might  derogate  from  the  sovereignty  of  the  mother 
country.  In  the  proprietary  government,  the  guvemorn  were  ap- 
pointed by  the  proprietaries,  and  legislative'  assembliox  wpre 
convened  under  their  authority;  and  indeed  all  the  usual  preroga- 
tive were  exercised  which  in  provincial  governments  belonged 
to  the  crown.*  Tlirco  only  existed  at  the  period  nf  the  Ameri- 
can Kevolution,  namely,  the  proprietary  governments  of  Maryland, 
Pennsylvania,  and  Delaware."  The  former  had  this  peculiarity 
in  its  character,  that  its  laws  were  not  subject  (o  the  siipervision 
and  control  of  the  crown;  whereas,  in  botli  the  latter  snch  a  au- 
pcrvisiou  and  control  were  expressly  or  impliedly  provided  for.' 

§  101.  7%irtf/y,  ctiurter govcrmnents.  Mr.  Jiistii;eBlack8tono* 
describes  them  as  "in  tlie  nature  of  civil  oorporatioiu,  with  the 
power  of  making  by-Iawa  for  their  own  Ent«<mal  rcgulntloo,  not 

■  SlokM'i  Hilt,  of  Oatonka,  lft7,  1S8,  IS^  SU. 

■  1  1>o^.  Sunn.  »7. 

•  t  BUck.  Conm.  108;  StokWi  But  of  Coin.  !«. 

•  StokM-i  HbL  of  C^ko.  tt. 

•  1   rik.  nut.  U;  StokM^  Rirt.  of  C«1(W.  1»;  9  Door.  Sdmk.  907. 

•  1  CbilniFn'*  Aanak,  7»t,t9J.  >  1  BL  Otaua.  M. 


CH.  ITII.] 


ClflSRRAL    RKVIEW. 


115 


contrary  to  the  tnwn  of  F^gUml ;  nnA  with  such  rights  aiul  &u- 
thoritie*  an  are  specially  givt'n  them  in  their  8«TeniI  charters  of 
incorporatioo.  They  have  a  governor  name']  by  the  king  (or, 
in  Home  proprietsry  colonies,  by  the  proprietor),  who  is  his  rcp- 

'resentative  or  deputy.  They  have  courta  of  justice  of  their  own, 
from  whoee  ctecisiona  an  appeal  liea  to  the  king  and  council  hem 
In  Encrlnnd.  Thoir  Rvncra!  asflemblien,  whioh  are  thpir  house  of 
cotomuiia,  toftvthcr  with  their  couneil  of  state,  itoing  their  upper 
boDse,  with  the  concurrence  of  the  kinjr,  or  bia  reproacntatiTe  the 
governor,  muko  law*  atiited  to  their  own  emcrirencips. "  Thia  ia 
by  no  iDvoiia  u  just  or  accurate  di«cn]>tioQ  of  {hi-  charter  gorcm- 
mcnta.     They  could  not  properly  bo  considered  aa  mere  civil  cor- 

.,|MrRlion8  of  the  realm,  ent[K>wcrcd  to  ptutu  by-laws;  but  rather 
U  great  political  establishments  or  colonic.'^,  poM»cssing  the  gen- 
eral power*  of  government  and  righta  of  sovereignty,  dependent, 
indeed,  mid  subject  to  the  re«lm  of  England,  but  still  possessing 
within  their  own  territorial  limits  the  geners!  powers  of  legisla- 
tion and  taxation.'  TIte  only  charier  governments  existing  at 
the  iieriod  of  the  American  Kevoliition  were  those  of  Massachu* 
MttH,  Rhi>de  Island,  and  Connecticut  The  lirst  charter  of  Massa- 
chusetts might  be  open  to  the  oljjection  that  it  provided  only  for 
a  civil  corporation  within  the  realm,  and  did  not  justify  the  »»• 
sumption  of  the  extensive  executive,  legislative,  and  judicial 
powcm,  which  were  afterwards  exercised  upon  the  removal  of 
that  charter  to  America.    And  a  similar  objection  might  be  urged 

I  ^fAinst  the  charter  of  the  Plj-moulh  colony.     But  the  charter  of 

''William  and  Mary,  in  Ififtl,  waa  obviously  upon  a  broader  foun- 
dation, and  was  in  (he  strictest  sense  a  charter  for  general  politi- 
cal government,  a  constitution  for  a  state,  with  sovereign  powers 

'  and  prerogatives,  aiid  not  for  a  mere  municipality.  By  this  last 
charter  the  organization  of  the  different  departments  of  the  gov- 
ernment was,  in  s*>me  respectii,  similar  to  that  in  the  provincial 
gnrenimenta ;  the  governor  wan  appointed  by  the  cro«-n;  the 
Gooncil  annually  chosen  by  the  general  assembly;  and  the  house 
of  reprraentativffl  by  the  people.  But  in  Coniiectic»it  and  Rhi>dc 
Island,  th«  charter  govcrmncnts  were  oi^nixed  altogether  upon 
popular  and  democratical  principles;  the  gorornor,  cotmcil,  and 

•  1  Cbtmn*!  AbiuIi.  374, 9TS,  S9S,  687;  1  T^A.  Itlwti.  1>ann.  .Kv^  SS9;  1  ntlc 
Birt.  IM:  t  Hatch.  Blit  No.  13.  p.  B2»i  Mmm.  8uu  Pwpm,  833,  SW,  US,  9Mi 
Stohct'i  BiaL  of  Cnlcn.  tl;  I  Dooj.  Sonim.  907. 


116 


BtSTOKT  OP  TDK  C0LOKIK3. 


[woe  U 


OMcmbty  being  annuallj^  <-ho«en  by  the  freemen  of  the  eolonj. 
and  1)11  oth«r  utliccra  appointed  by  their  authority.'  By  th«  stat- 
utes of  7  £  8  Williun  S  (ck  22,  §  OX  it  iru  indeed  required 
that  all  governont  appointed  in  charter  and  proprietary  goTem- 
menta  should  Iw  approved  of  by  the  crovn,  before  entering  upon 
the  dnties  of  their  officej  but  this  statute  van,  if  at  all,  ill  ob- 
nen'ed,  and  Aeonis  to  have  produced  no  esaential  change  in  the 
colonial  policy.' 

§  162.  The  circum3tanc«e  in  which  the  colonics  were  geni'^rally 
agro«d,  notirithstanding  the  divcrBitit-s  of  their  or^uizution  into 
provincial,  proprietary,  and  charter  govcrameut«,  were  tlu:  fol- 
lowing ;  — 

§  163.  (1)  Thoy  enjoyed  the  rights  and  privile)?ea  of  British- 
born  Hubjci-ta,  and  the  benefit  of  the  common  lawn  of  Enj^kud ; 
and  all  their  laws  were  required  to  be  not  repugnant  unto,  bat  as 
noar  aa  mii^ht  be,  agreeable  to,  the  laww  and  statutes  of  England.' 
This,  as  we  have  seen,  was  a  limitation  upon  the  legislative 
power  contained  in  an  express  clause  of  all  the  charters,  and 
oonid  not  Ut  transcended  without  a  clear  breach  of  their  funda- 
mental conditions.  A  very  liberal  6spoeition  of  this  clause 
seems,  however,  always  to  have  pi-ovailed,  and  to  have  been  ac- 
quiesced in,  if  not  adopted,  by  the  crown.  Practically  a])cakinit. 
It  seems  to  liuvo  been  left  to  the  judicial  tribunals  in  tliu  colonies 
to  ascertain  what  part  of  the  common  law  was  applicable  to  the 
situation  of  the  colonics;*  and  of  course,  from  a  difference  of  in- 
terpretation, tlie  common  law,  as  actually  administered,  was  not 
in  any  two  of  the  colonies  exactly  the  same.  The  general  foun- 
dation of  the  local  juriBprudenee  was  Cioufessedly  composed  of  the 
same  materials;  but  in  tbo  actual  superstructure  they  were  va- 
riously comltined  and  modified,  so  as  to  present  neither  a  general 
symmetry  of  design  nor  a  unity  of  executjon. 

§  1&4,  In  regard  to  the  legislative  power,  there  waa  a  atill 
greater  latitude  allowed;  for  notwithstanding  the  eautions  refer- 
ence iit  Iho  charters  to  the  laws  of  England,  tlie  aasttmbtios 
actually  exereised  the  autliority  to  abrogate  every  part  of  iba 


t  ChBtmBn'i  Anuli,  at,  S».  391;  Slofcca'i  Biit.  Cdoii.  SI,  tt,  SS. 
■  1  Chahnvn'*  AllIul^  MS;  Sukn'a  HJit.  Cblcm.  SO. 

•  Com.  1%.  N«r)9tu)a,G.  l;U.Uj,C.i2  Wil»M'tU«rl«ct.43,M,  G<l,5I.S«. 

•  1  Chalnicii'a  Anntli,  877,  *7S,  ftS?;  1  Tncktr'a  Bbok.  Camm.  SSI;  I  Vrt.  Ui, 
H9:  t  WOmb'*  U>  Lftet.  U  to  St;  Uan.  atate  Fapcn  (td.  ISIS),  *Tk  8*0.  S>1. 


CH.  XVII.] 


GEiteSJLL   BEVIEV. 


IIT 


common  Inw,  cxcopt  that  which  united  the  colonies  to  the  parent 
state  b}'  the  gcueral  tios  of  allegiance  an<l  dependency ;  and  every 
p&rt  of  the  8tatut«  Inw,  except  thoac  acts  of  Parliament  which 
expreraly  prescribed  niles  for  the  cotoniiM,  and  newaHarily  )>ound 
them,  as  integral  pnrt«  of  the  empire,  in  a  genera]  Bvslem,  farmed 
for  all,  and  for  the  interest  of  all.'  Tagnanl  this  superintending 
authority  with  more  effect,  it  was  enacted  by  Parlianient  in  7  £  8 
William  3,  ch.  22,  "that  all  lavrs,  by-laws,  usages,  and  customs 
which  should  be  in  practice  tn  any  of  the  plantations,  repugnant 
to  any  law  made,  or  in  bn  made  in  this  kingitom  relative  to  the 
said  plantations,  shall  be  utterly  void,  and  of  none  effect."' 

§  165.  It  was  under  the  consciousness  of  the  full  poaae«»ion  of 
the  rif^ta.  libcrlicx,  and  imtniinities  of  liriltsh  subjects,  that  the 
Colonists  in  almoflt  all  the  early  legislation  of  their  respective  as- 
^rablicfl  insisted  upon  a  declaratory  act,  acknowledging  and  oon- 
Grming  them.*  And  for  the  most  part  they  tlius  succeeded  in 
obtaining  a  real  and  effective  Magna  Charts  of  their  libertieo. 
The  trial  by  jury  in  all  cases,  eivil  and  criminal,  was  as  firmly 
and  as  nnivcr&aliy  established  in  the  colonies  as  in  the  mother 
country. 

§  166.  (2)  In  all  the  colonies  local  legislatures  were  estab- 
lished, one  branch  of  which  consisted  of  rcpnrsentativcs  of  the 
people  freely  chmen  to  represent  and  defend  their  interests,  and 
possessing  a  negative  upon  all  laws.*  We  have  seen  that  in  the 
original  structure  of  the  charters  of  the  early  culunics  no  provi- 
sion  vas  made  fur  such  a  legislative  budy.  But  aocustouied  as 
tbo  colonists  had  been  to  possess  the  rights  and  privileges  of 
Englishmco,  and  %-aluing  as  they  did  above  all  others  the  right  of 
rejireftcntfttion  in  Parliament,  as  the  only  real  security  for  their 
political  and  civil  liberties,  it  was  easy  to  foresee  that  they  would 
not  long  endure  the  exercise  of  any  arbitrary  power;  and  that 
they  would  insist  u)>on  some  Hhare  in  framing  the  laws  by  which 
they  were  to  he  governed.     ^Ve  find  accordingly  that  at  an  early 

■  CWnMn'a  .Kanah.  139,  1*0,  (71.  OTJ,  Mi.  SST;  1  TDcki-r'i  Blktk.  Comni.  3S, 
I.:  3  warn-!  Uir  l^t.  49.  SO;  1   Doog.  Summ.  SIS;  ]  PJtk.  Hid.  IDS;  Mm. 
PapoK,  StS,  310,  3*7,  3S1  to  304,  KS,  VO;  Dainmar'a  Dcfeoo*.  1  Aatnaui 
.«&,  Ac 
I  StokWa  Cabn. 

<  1  Pitk.  HmL  SS.  89:  BaUh.  CoU.  901.  4e.;  1  Chalmmi  AonUa.  67Si  S  VvuK. 
lam.  in. 
•  I  Doug.  Soimi.  313  to  SIS. 


m 


118 


HISTOKY   or  THE  COLONIES. 


[BOOK  I. 


period  (1619)  a  house  of  burgesacs  was  fonwd  upon  tli«  tlicn  pro- 
prietors of  Virginia.'  In  Maiuauhtuctta,  Cotincclicut,  Now  Htunp- 
Khire,  and  Rhtxlo  laloud  the  Biunc  oouret-  wad  piirauvd.'  Aud  Ur. 
Uutcbinson  Itao  currectly  ulwun'vd  tlwt  ull  tlic  coluuics  before  tho 
reign  of  CtiarlcM  tJie  £k-coud  (Marylaud  alooc  excepted,  wboae 
charter  coiitaiat.<d  un  cxpross  provision  on  tlie  subject)  settled  a 
model  of  govenuucnt  for  Uioiusclves,  in  which  the  people  bad  a 
Yoice  and  reprtmentatioii  in  framing  the  laws,  and  in  asaentittg 
to  burdens  being  imjKiscd  upon  theniaolvca  After  the  restora- 
tion, thtru  wait  no  iustance  of  a  colony  without  a  representation 
of  the  people,  nor  any  attempt  to  deprive  the  colonies  of  this  privi- 
lege, vxoepl  during  the  brief  and  arbitrary  reign  of  King  Jaue*- 
the  Second.' 


>  BatwrWin'a  Amnlnt,  B.  9.  *  1  Tiickpr'a  BUck.  Comm.  App.  S86. 

*  1  HuU'h,  UbU  Mm.  i>(,  not«;  1  Doug.  Suniii.  IIS.  Mr.  IlulchluMii'*  temuk* 
■r*  ecliUrd  19  (onwlliing  more  th^n  thu  brief  iiolio<v  ui<I  a  •)<iuUtiuii  1«  thvNfai*  nuiU 
trf  the  \milng  F**"g°-  "  It  1*  obMmbU  that  all  tlie  ooioaisa  beCiira  Um  nign  of 
XtnK  Charica  tba  Secoiul,  Maijlaml  txot-i'Ud,  wttled  a  model  of  gurenuncoit  tot  thoai- 
■elrat.  Vlr^nU  liul  lw«ij  iiimiy  yt*n  diitnclwl  undor  tk«  ^^'^"■■■■°'i'  "^  preaiil«nl* 
and  gDreniore,  with  couuvtLi,  iu  whoM  iioniiiiatioD  or  ranoral  th«  pwopk  had  no  rdw, 
uulil  ia  thv  yam  IS'iO  a  hausv  of  burgBoo)  broke  out  ia  tb«  coloay;  the  kh«g  aot  Uw 
Ktatid  ooBndl  at  lininc  not  having  |[jvmi  any  powm  or  dlrectioui  for  it.  The  garwMt 
and  anlaiaata  of  the  Manavbusetta  at  &nt  £ntend«l  to  iiila  Iho  ptOfde;  a«d,  H  ■< 
hare  obanvtd,  obtainsJ  their  cooMBt  for  ft.  but  IhU  lw(«d  l»a  «t  tbm  ;an  Miljr; 
and  alUioug^  thrra  in  no  color  for  it  ia  the  ahaiter,  jtt  ■  hooae  of  dqiolie*  appeared 
MuMeoly,  in  10$4,  to  tbe  mrprue  of  the  nia^stnrtc^  and  tb*  dlMpfieJiUmant  of  their 
•dianua  (at  pomtt.  Connecticnt  acion  atlar  lollonod  ilw  phtn  of  tK*  HnHaehiuwtU. 
Kav  IlaTDD,  although  tba  paopU  bad  the  hlghaU  irvtNnoa  (or  thiar  leadn^  and  Ihl 
tua*  thirty  rwi*  ia  JuJivial  procmdIngH  subanHed  lo  iho  majiisttafjr  (it  imut,  bow> 
enr,  be  nmnnbered.  that  it  waa  aBnoaUf  deeted)  without  a  jurf ;  x«  in  matlen  ol 
IcgUUlion  tbe  peopUk  b«a  tlw  li«u,liiiiiinL  woald  hara  their  ibara  bj  ikfir  Hprwf  (*■ 
tirea.  Kew  Hanipahm  oanUnad  together  aniiw  lb«  nma  fonn  with  MaMaohaaMU- 
Lonl  Saj  tcmiilMl  lb*  pfiiicipa)  bmu  of  th«  UawwhiMrtt^  to  make  them  and  thdi 
bsln  nahim  aifl  ataolul*  ^rtnon  of  a  new  cohMj ;  bat.  ODiler  tbia  pliK.  thef  emM 
tai  no  froiA*  to  fblbxr  tiiMn.  Barbttdoe*  and  the  Laevard  bhutd*.  bq{w  fa  ISM, 
aIniffilH  UBdv  gorerson,  and  fiounoflik  and  fpataadtng  (Mfirfetoia  far  abont  tiNAty 
jFtBTK  Mnaibcn  anBtnd  dtath  b;  the  arbitrary  afstmeai  of  courta-aairUal.  or  othar 
acli  of  rlolf  to,  aa  om  •td«  or  th«  oUior  bapprMil  to  fravail.  Al  Iraglli,  In  1«I5,  tba 
•JBnDbly  waa  aalltd,  and  no  naaan  gfran  bat  Aa,  ric ;  That,  bj  the  gimnt  oT  tiM 
Earl  of  CatlbJa^  tb*  inhatatanta  were  to  trnjoj  all  tba  Hbertiest  priril^ia.  and  ftaa- 
vUaaaaC  Kn|;li>li  labjeota  :  aad  tberefoce,  ai  it  ia  abo  eiprceal;  nralfoetd  in  tb< 
gnnt,  could  n«t  li^lly  bo  boond,  or  {har]{ol  b^  any  act  wftbonl  Uteir  own  ronaanL 
IUj  gnuil,  in  14t£7,  wai  uiade  b;  Cbuloi  tba  Pint,  a  ptinc*  Nt  tbe  IDDat  laudv  of 
tb*  aBk^tcta'  llfaartiea.  After  the  rtatoralion.  (h*rr  la  no  inibuioa  of  e  «i(aaj  •attlad 
witboat  a  rtpmanlatlan  of  the  paofilfv  nor  aur  atlnmpt  to  deprive  ibo  ooloaiai  o{  tUa 
priritfgr,  CMept  in  tha  atbittaiy  irfgn  of  King  Jamot  tbe  Sraobd." 


CH.  XVIl.] 


OBMEIUL   RKTIRW. 


119 


§  167.  In  the  proprietary  and  charter  goremmentfl,  the  rigbt 
of  Ute  people  to  be  governed  by  laws  established  hjr  a  local  legis* 
laturo,   in  which   they  were   repreflented,  was   remgiiiu^d   as   ft 

ndamentai  principle  of  the  compact     liiit  in  the  provincial 

ivernments  it  was  often  a  matter  of  dobate  whether  the  people 
had  a  n'l/lit  to  be  ropre<iont<!d  in  tho  lopislutun?,  or  whether  it 
waa  a  privilege  enjoyed  by  the  favor  and  during  the  pleasure  of 
the  crown.     Thi!  former  was  the  doctrine  of  the  colonists;  tho 

,tt«r  was  maintainwl  by  tho  cro»-n  and  its  lejjal  adirisera.  Strug- 
'f^lcs  took  pla«M-  from  time  to  time  on  this  subject  in  Bomo  of  tho 
prorincial  atuwuiblies,  and  declarations  of  rights  were  tlicrc  drawn 
up,  and  rejected  by  the  crown  as  an  invasion  of  its  prerogative.'. 
The  crown  nltio  claimed  as  within  its  exclusive  compcteneo,  tho 
right  to  decide  what  num)>er  of  «L-presentutivcs  should  be  chosen, 
and  from  what  places  they  should  come'  The  provincial  asscm 
hiies  insisted  u|>on  an  adverse  claiuL  The  crown  also  insisted 
on  the  right  to  coiilitiuo  the  legii^Intivc  assembly  for  au  iudcfiuitc 
period,  at  its  pleasure,  without  a  now  election,  and  to  dissolve  it 
in  like  manner.  Tho  Utter  power  was  admitted,  but  the  former 
WM  most  stoutly  rvsisted,  as  in  effect  a  dv^lruction  of  the  popu- 
lar right  of  repreitentation,  frequent  elections  being  deemed  vital 
to  their  political  safety,  — "a  riglit,"  as  the  Deelaralion  of  Inde- 
pendence emphatically  pronotmces,  "inratiinablc  to  them,  and 
formidable  to  tyrants  only."*  In  the  colony  of  New  York  tlto 
crown  succeeded  at  Inst  (1743)*  in  ralnlili»thiug  septennial  asi*ein- 
bltes,  in  imitation  of  the  septennial  I'arliamenta  of  the  parent 
country,  which  was  a  measnro  bo  offensive  to  the  peo]>le  that  it 
con»titut«d  one  of  their  grievances  pro]>oundod  at  tho  oomnienM- 
meiit  of  the  American  Revolution.' 

§  Ids.  For  all  the  purpones  of  domestic  and  internal  regula- 
tion, the  colonial  legislatures  deemed  themselves  putsessed  of  en- 
tire and  exclusive  authority.  One  of  the  earliiat  forms  in  which 
the  spirit  of  the  |>cuple  exhibited  itself  on  this  subject  u-as  tho 
tant  denial  of  all  power  of  taxation,  except  under  laws  passed 
thcmsclveB.     The  propriety  of  their  resistadice  of  tho  claim  of 


>  1  Pitk.  llirt.  M,  n,  STi  1  C'Inlni.  0|<in.  ISf;  i  Dco^  Suinni.  951,  ttt. 

>  1  Pitk.  Uau  88i  1  Clubii.  Opis.  MS,  ZTti  S  Dong.  Suinw.  37,  M.  »,  M  il. 
T3 :  Chdur.  frwrvg.  ch.  S. 

•  1  Pitk.  tliM.  8«.  S;.  *  i  Pttk.  RM.  BT.  «>. 

»  In  Vintuii>UiwtlwuM»l)UNtr«nMirtiflaU.    Th«  r«>lirall«l,  K<x  fiS. 


120 


HISTOBT  OP  THE  COLONIES. 


[BOOK  I. 


tbo  croten  to  tax  tbcm  seeais  not  to  have  been  denied  by  tiie  most 
Rbrcniious  of  their  opponents. '  It  was  th«  object  of  the  ktt«r  to 
subject  tliem  only  to  tha  undefined  and  ariiitniry  power  of  tuxa- 
tion  hy  Parluimitni.  The.  colonittta,  with  a  finnnt'^s  and  public 
spirit  which  striki-s  us  with  siirpriHC  and  udmiration,  claimed  for 
themsclvca  and  their  posterity  a  total  oxomption  from  all  taxa- 
tion not  impodC'd  by  tLcir  own  reproAcatatirvn.  A  dcxrluratioD  to 
this  effect  will  hti  found  in  some  of  tlie  earliest  of  cvleuial  Ivgis- 
latJOU, — in  tlmt  of  Plyoiotith,  of  MaKMchusc-lts,  of  Virginia,  of 
Maryland,  uf  Rhode  Island,  of  New  Vork«  and  indeed  of  most  of 
the  other  colonics.*  Ilie  general  opinion  held  by  them  was,  that 
Parliament  liad  no  authority  (o  tax  them,  because  tlicy  were  oot 
represented  in  Parliament.' 

§  109.  On  the  other  hand,  the  statute  of  6  Oea  8,  ch.  12, 
contained  an  express  declaration  by  Parliament  tJiat  "the  colo- 
nies ajid  plantations  in  America  have  been,  are,  and  of  ri^t 
ou^t  to  be,  Rubordinat«  unto  and  dependent  u|>on  the  imperial 
crown  and  Parliament  of  (treat  Britain,"  and  that  the  king,  with 
the  advice  and  consent  of  Parliament,  "had,  hath,  and  of  right 
ought  to  have,  full  power  and  authority  to  make  laws  and  statutes 
of  snUkient  force  and  validity  to  bind  the  colonies  and  people  of 
America  in  all  cases  whataoovcr."* 

§  1T0.  It  dot's  not  appear  that  this  declaratory  act  of  6  Geo.  8 
met  with  any  general  opfHWition  among  those  statesmen  in  t^g- 
lanJ  who  were  most  friendly  to  America.  Lord  Chatham,  in  a 
speech  on  the  ITlh  of  Dccenitier,  1765,  said:  "I  assert  the  au- 
tJiority  of  this  country  over  the  colonics  to  be  sovereign  and  su- 
preme in  every  circtuustance  of  govommcnt  and  Icsislatino.  But," 
he  added,  "taxation  is  no  part  of  the  fjovcrning  or  legislative 
power;  tAscs  are  the  voluntary  grant  of  the  people  alone"*    Mr. 

>  Chalin.  Aotdli.  6S8,  Sjl,  <33,  080,  eB7;  SM.  0  Cm.  I;  oh.  1!. 

*  1  Pttkin-i  BbL  SO.  »D,  01;  3  Hofann-a  Anadi^  13S.  ISI,  lU;  3  Do^.  Siunn. 
9U:  1  DoDX.  Sumn.  SIS:  S  HatoiL  Call.  S29,  SM. 

*  1  PStkiii,  8S,  &c.  «;.  1ST.  ISt;  Huik.  Coloo.  Sit,  3S3:  Ap|>X.  400,  470.  473: 
Chains  Annali,  SSS. 

*  0  Gm).  3,  tb.  19 ;  StekM't  Colon.  S8,  39.  8m  tbo  Ifimhan  oa  Colon,  ob.  IS, 
p.  »S ;  Vai^lwB,  B.  300,  400 ;  I  Pitkin'i  BIH.  13». 

*  lb.  Bnti«  hM  ikvlnh'J  vith  ■  mort  mutnli-  buid  thn  tn»  origla  «/  IkU  iWit- 
aaw  to  tba  paver  «f  uutioa,  Th*  paMage  i*  ki  fall  «(  kia  btat  «laqiiinio«,  ami  par- 
tner* "^1^  ""'^  atnkias  MeUly  the  ehanwWr  at  thn  nUcmiMi,  thai,  nolvitlwIanUng 
lU  lengtk,  I  am  tMBpCcd  to  Uy  it  Man  Ihn  raadar  In  Ihlt  notK. 

"  lo  tU*  clumctar  of  the  AawrtcaM,  a  lor*  of  tittdom  U  Dm  pmlanniatiag  tmijut, 


CH.  xm.] 


OeNEBJLL  BETIEW. 


121 


Burke,  who  maj  justlj  bo  deemed  the  leader  of  tho  colonial  ad- 
vocates, muinbiiucd  (be  suprcmac}'  of  Parliuucat  to  the  full 

which  uuikt  Ktiil  dislinpiUha  ihs  whcl*;  *n4  m  to  uvknt  It  alnrs  ■  jtaloiu  ■S'««- 
don,  jXMreotcaka  bMuain  BUipiciotii,  mtivPt  tixl  untrMlxMr,  wliciiirvt  Ihcjr  mc  the 
ItMt  attMnpt  to  wnt,i  frcno  thom  b;  lorte,  or  ihullti!  from  tbcia  by  chioiuc,  wliu  Uwy 
tUnk  th*  only  adranUg*  vorth  living  Itr.  Thu  fipTci!  apirit  of  lilinty  in  »trnng«t  In 
Um  EHglUh  ooloiitnt  pi«)«hly  Ihui  in  any  other  |«opU  of  Ihn  e*iib:  anil  lltw  from  a 
gnat  <r>ri«(y  of  pumrful  cauwa;  which,  to  undpnlAnil  t)ir  trow  iviiijHr  of  Ihcii  teinili^ 
and  tlha  ilira^lMil  wbieh  tbi*  ^liiit  Uluk,  it  wUl  not  W  uuin  to  lay  opeii  aoucwhaX 
moft  lately. 

"Fim,  tha  proide  of  th«  mIohIm  uo  dMCtndanU  of  Knxl'^hmnn.  EiijtTuxl,  Sir,  la 
a  nation  which  atill,  1  tiope,  rwp«cla^  4iid  tunniTly  iilonnl,  hi-r  frrcluiii.  Th«  coloniiM 
«B|%I>I<(1  from  you,  wh«o  thii  |*rt  of  your  cliiiacter  wiu  tiioal  firHlomiiuiiil:  tftd 
tiicy  took  thii  bias  aoil  diiwciou  the  tn-Hncnt  thi'y  luiIcd  from  joiir  haniii.  Tlicy  4i« 
tli(*Tfoii«  not  only  dcrol«i  to  liberty,  but  to  liberty  accordJas  to  KatHiali  idral^  and  on 
Entcliah  principle.  Alulrat^t  liberty.  Ilk*  aUi«r  in««  abninicUonH,  tt  not  to  Iw  found. 
liUrty  inli'^nu  In  soriiii  miihIIiIu  objoct;  and  pvery  naliou  liiui  tonnol  to  itself  loim 
farorit*  piiiul,  whidi  by  way  uf  Bmineni:^  bMoniea  the  cHtsrion  of  ihdr  happincnK 
It  happriiHl,  yon  know,  Sir,  that  tbo  gnat  cobteU*  Cor  bccdoni  in  thu  countrf 
wwo  (ram  the  cailiut  time*  ohlelly  upon  the  quotion  of  taxing.  Uou  of  tha  <i>n- 
Iwti  in  the  ancient  couininriwDalthH  tiini(4  ]ii-liiuirily  mi  llut  right  of  elrvtion  of  magb- 
tt*tM,  or  mi  thu  lialaiiVB  among  the  Hvprat  ordera  of  Ihc  atata.  The  queitioa  of  money 
via  not  with  tbrui  »  imiuodiute.  But  in  England  It  «v  otherwjio.  On  thii  point  of 
laxea  tlM  ablett  jkui  Aiid  nio«l  rloiiuoat  longota  havs  been  exerclacd,  the  gnalart 
■pirita  h«Tc  wtflt  nnd  lufTi-rcd.  In  order  lt>  gire  Ilis  fnlleat  aalisfaiitloo  conwrnlng  tha 
knportaiMa  of  thu  point,  it  wta  not  only  nrwuary  for  Ihoao  who  in  arj^nioiit  defended 
llie  exotUvnoe  of  the  EiigllKli  KuuHlltutlon  to  inaiit  on  this  pririUiie  of  granting  mnnay 
•aadrypoint  of  [act,  and  lo  pniva  iliHt  IIjd  rlitht  hwl  Nvn  ii^knnwlitdgiHl  in  au«ltnt 
parthoMDla  ami  blind  uiuigi:(  to  mide  in  a  ci-rtiiin  liody  caIIwI  ihv  Uouw  uf  Cominont. 
They  want  nanch  hrthet ;  tlipy  nttcmiptol  to  provp,  and  tlivy  tucciTdrd.  thai  in  tbroty 
It  «nght  to  he  M,  fMm  the  particular  tmtiirci  at  n  home  of  commona.  ai  an  Immrdiate 
RptMatatinxir  the  peopK  wlirther  tlir  old  tv.iit\h  h*l  di^livered  Ibi»  oracle  or  not. 
They  took  infinite  paini  t«  iiiculcato,  u  a  fuudiinu'nisi  pnucii>Ie.  that  in  all  iD«a- 
aicbk*  the  pMpte  imiHt  in  effect  tliamudrM  nicliat^^ly  or  iniTiii'dlately  jxinMi  Iha 
poww  of  panting  their  own  miinoy.  or  no  ehadow  of  libmy  couU  aobwil.  TTw  rd- 
MiiM  .l«w  fVom  yon,  aa  with  their  hfe-blood.  thM>  ide^  ul  principl™.  Their  lone 
«*  liUirty.  aa  with  you,  liied  and  attached  on  ltd*  «|»c*Bc  point  of  taiingr'  Ubtrty 
mi^t  be  afe  or  <Bi|{ht  b»  vndanacnd  In  twenty  Mm  putlnlar*.  wilhoat  thalf  bcaag 
awdi  pirnwiil  or  aknned.  H'tv  thiy  felt  iti  ptiW;  and  aa  tbey  feand  llial  bnu  they 
thoniht  Ihi^rlrra  nek  or  aennd .  I  do  not  lay  whethar  they  wen  right  or  wrong  iu 
applying  yoor  (pwt«l  ugwimta  to  IbeJr  own  ««•.  It  b  not  aa*y  indeed  to  mako  a 
nOMpoly  of  tliMtaiM  and  oerfolbrien.  Th*  far*  ia,  that  tbey  dnl  thu  apply  iboao 
I  anomentn;  an-1  your  imaile  of  gvroming  ■>>•«,  whether  through  Iwiity  or  iu- 
dokDM,  thrangh  winloni  or  niiatake,  oeAllnned  tWn  in  the  aaagination,  that  tbry,  u 
wvll  aa  y«B,  had  an  interest  In  Ibea*  nanmon  ptinciplca. 

"They  wen-  lorther  conftrmed  in  Ihia  p1nuitii«  error  by  the  tbrm  of  thdr  pmvlndal 
Iqilidatlva  aannbKBa.  TVtr  goreramenl*  am  ]<ap(iUr  In  an  Mgh  dtgne;  lome  tr« 
jnttelypopoUi:  In  all.  tbcpapnlarnfaMPnUtirelatbenHMl  w«igMy:  and  this  ahua 
tf  the  pcopb  ia  their  onllnniy  gvnranwnt  nertr  fcibi  to  Intpln  tbem  with  kfty  ten- 


122 


KISTORT  or  THE  COLOKIBS. 


[boos  I. 


extent  of  the  declaratoty  act,  and  aa  jnatly  inctudinn;  the  power 
of  taxation.'    But  he  deemed  the  jwwer  of  taxutiuu  iu  Parlia- 

Ifinoiila,  uid  witli  i  tXmng  tttaaoa  bom  whatavw  Uiub  to  dcpliTo  than  or  Ui^ 
chief  inipotttnee, 

"  If  Biiytbin^  »cR  wanting  to  tbU  utramty  opcntiiiii  of  the  rorm  «l  goremmmit, 
nli^on  would  have  )pven  it  >  complete  cIToct     Rctigton,  «i«*]ta  ■  |irind{dG  of  mtngj. 
In  tliU  now  |>mpl«  li  no  wtf  onrn  out  or  Impaltcd;  kod  tholr  mola  of  ptofening  It  U 
kite  ona  mua  cauw  of  till*  fiv*  »|ilril.     nii  ^••n|iU  tn  fralnlanta ;  aitd  of  that  U»d 
which  i>  Uui  moat  adrcno  to  all  Inplicit  tubuiinduu  of  mind  and  upinkm.    1%b  i*  k 
penaiiion  not  only  fnvoratilo  to  libcny.  but  built  upon  it.     I  do  not  tliiiik.  Sir,  that 
Ilir  n-ULDii  of  tliU  arerunou  in  the  diucntiog  churchu  from  nil  that  looks  lilia  abao- 
IdIu  govcriiiiii'iit  In  m)  miii:1i  to  1»  winj(1it  In  lh<-tr  i<Tli|[loui<  trnct*,  u  in  tlidr  Uatofy- 
Ev«ry  oui'  kno"-*  llmt  (in-  Itomun  Cutliciliu  retix>'>"  i»  "t  Iwwt  cwviJ  witli  moat  of  1 
guvirnniL'nta  wburv  it  prvvaiU ;  tliat  it  luui  ({ruvmlly  g-iur  liund  in  kaiiit  with  lliNn; 
ttiid  received  gtcnt  fiivor  iiniJ  cvury  kind  of  luiiport  from  authority.     The  Chuidi  of 
EnffUud,  bHi,  wmi  fornifd  froni  hrr  cnulU  un>l«r  tho  nuraing  can  of  trgular  govern- 
iiiruL     Bui  Lh#  dini^iiting  iiitiiresla  luTa  «iii-iinf;  np  in  dinwt  opijKultion  to  all  tha^ 
onlinary  powpn  of  th?  world,  and  oould  justify  tint  up[<miliuii  only  an  •  rtninji  cbdMl 
to  natuial  liborty.     Their  very  onUtcncc  dcpondod  on  tho  piwcriiil  aud  usmnlllad^ 
uvrtion  of  tliat  clulcn.     All  PrDtCHlAntlmn,  i^v«n  tlin  moit  cold  and  paamrr,  ia  a  net 
of  dlwatiiL     ItuI  tliu  ri^lijpiiu  utoat  pn-vHUiil  iu  uur  Northern  »i1'>niM  la  a  nAnoiaiuit 
on  lliv  priiiciplit  of  nwittaii^^vi  it  is  the  liinidpnoc  of  diswut:  and  th«  I*ivt<«UMtlani  < 
the  rrotntiuit  religion.     This  nligion.  undar  a  vutirt)'  of  dcnominatiaiDi,  agrrdng 
nothing  tnu  id  tho  vommunion  of  the  iplril  of  llbrny,  li  prodnniinanl  In  mn*t  of  tlMl 
Northrim  prDvinuex;  nht^rv  thv  Cliuri'h  of  KngUtid,  notwitliituinliiig  ita  lrg«l  right 

h  in   reality  no   iiiurv  llinu  a  sort  of  private  sect,  not  campoiinii   moat  prahably 
leiilll   of  tlifl  fvoplF.     Ths  L-oloDUIa  k-ft   England  when  thin  iiplrit  waa  high,  and 
tha  emignuiti  kos  the  higboit  of  all :  and  uvrn  that  iitr<'*in  of  fuiKigiMn^  wUoh  hw  i 
(Man  conataolty  tinwinji  Itiln  thiwi  i^olonU-^  hiiH  for  lh«  frntot  part  bntn  CMnpnaed 
nf  dtaa^nUrH  fniiii  tho  fttnbli«)>m(<rili  of  thi'ir  ni-rml  conulrioa,  and  kavo  brau^t  ■ 
witli  tlinn  a  temper  and  chvactar  far  from  ali«n  to  that  c/  iha  pMpla  wltk  whe 
they  niwd. 

"&r,  I  OUI  porceivo  by  their  injinniir,  tliat  aome  gmtinnutn  ot^t  to  Ifae  1 
of  Ihb  daacrlptlnn,  havaiiM  in  th»  aouthvrn  colonita  tb«  Cbnroh  of  England  fomi 
larga  body,  and  hu  a  nguhir  wKablinhmmt.     It  u  turtiimXy  Imr.     Thora  fa,  bo«tv«^| 
a  cireuuiitancii  altrndlng  thvac  fokaica,  which.  In  tnf  ofrinW,  ftally  oamtarh 
tUi  diffiTtvncc.  and  makes  the  spirit  of  Hbarty  alQ)  mora  lilg)i  and  baq)thty  than 
th«M  of  the  borthwarl.     It  la  llial  In  Virginia  and  the  Candinm  Ihiry  han  • 
mullitudn  of  iLtve*,     When  thi«  i>  the  caae  In  any  pM  of  the  world,  tboa*  »bo 
tif  are  by  far  tha  iiioat  jiruud  and  joalouA  of  their  freedom.    n««dom  is  to  thnm  no 
only  an  anjnynvnl,  but  a  kind  of  rank  and  frinlFg*.    Not  acting  tbm  that  baodoaO 
a*  in  cuUBlries  whrre  it  U  a  touman  UciKl^g  and  aa  broad  and  pnanil  aa  An  air,  may 
lia  nnilad  witb  msch  al^JMl  toil,  with  griM  tnlacry.  with  all  lit*  nxtiirinr  nf  afT*<tad», 
liberty  )ooka  auoncM  thrm  like  asmathing  that  U  morK  noble  a»d  libera].    I  do  not 
BMan,  Sir,  to  (cmuatwd  ibr  lujMfcur  morality  nf  thli  MntiBeat,  whieh  haa  at  lawt 
mnck  inid*  aa  rlrt«*  In  It ;  bnt  I  caanot  alter  the  naUra  of  nan.    no  fcet  la  » ;  i 

■  Burkc'a  Spaadi  om  TUatloa  of  Amaric*  la  1771;  Bnrkn'i  Spetdi  <m 
lion  with  Auierfci^  31  Hatdi,  1779b    Be*  abo  hia  Letlera  to  tha  SbcfiOi  ct  I 
in  1777. 


CH.  xvir.] 


-okmbbal  RETIBW. 


1£8 


mt-nt  tw  an  iiutniu«ut  of  vuiiiiro,  and  nat  u  a  mcanit  of  su|)pl}'; 
oud  therefore  Uut  it  sliuuld  be  rowrtcd  to  oulj  in  extreme  cases 


UuN  pMjik  of  tli«  Southern  colaniui  mn  mucb  mom  itraogly,  uid  iritfc  ui  )i%h«r  aiiil 
I  ftabbotn  iiirit,  attnclinl  lo  liberty,  tbiui  thou  to  the  noTtliwud.  Suck  wen  alt 
ha  aiieiuit  eommonwiwltliii ;  «tu:h  vim  anr  Uolklc  tncvslon  ;  such  hi  onr  ditf«  wtcn 
th*  Paha;  and  aocb  will  Lw  all  uiulrnt  of  ala*«a,  kIh)  ar*  sot  aUvci  Uicanialn*.  In 
■nvU  a  |iau|Jc  ttia  liaiiglitiuens  uf  Juiuitution  comtiiica  «ilh  tbo  (pLHt  of  fmdam, 
(ortilka  h,  anil  ivudon  ii  iiiviucible. 

"  i'pTUiU  tat,  Sii',  to  add  anotboT  clrcuni»taiK«  in  onr  colonM.  vhich  eoiildbulegi 

no  mean  imit  towanl*  iht  |[mwlh  and  affeul  of  thu  nntnctabli)  apirit.     I  nwan  llmlr 

iocatluii.     lu  uu  «ouuir]r  paihafa  in  the  world  u  Hip  b*  «>fKii«nil  a  atuJy.     Tha 

lf«uiuii  iunU  U  nuiiKTiQiu  and  powcrfnl,  and  lu  luoct  praviiuMi  it  iikrs  the  lead. 

The  gCMtoi  number  of  tlic  deputio  arnl  to  Congieu  mn  Inaycn.     Out  all  vbo  trad 

—  and  moal  do  pnd  — oixtraTor  to  obtain  aotiw  iniatltring  in  that  aoiciiiu).     1  liam 

I  told  by  an  etiiliiiiiit  bDuksdler  that  in  no  bnuich  of  liU  buaiiiaai,  after  tmeta  of 

pillar  devotion,  ittn  k>  many  booka  lu  tlinu  on  the  Ian  oxportcil  to  tha  plaatation*. 

Tlie  coloniiti  liuvc  now  TiiIIeii  iuto  Ilia  WHy  of  [iriiilln^  llmiii  fut  tlii>!r  own  utt,     I  linr 

that  tlivy  haw  aold  nearly  a*  many  of  Blavkntuuv's  t'oniTiitiitiiiiiTt  in  Aincriua  a*  in 

uglaiiil.    (ienml  Gage  nutki  out  tliii  dinixnition  mry  larliciilarly  in  a  Ittter  on  jront 

'  table.    Ue  itatca  tjut  all  the  people  in  hla  goremmont  arc  lanycn,  or  analtonra  in 

law  i  and  lliat  in  Button   they  liavB  ba«n  aiiabltd,  by  ancccaafal  clilRaiiis  wholly  t» 

LMa'le  many  parts  of  one  of  your  capital  [wuut  vouiitiliitiouik     The  ainartiieaa  of  da- 

■  wiU  lay  that  Ihii  knowledge  oilghl  to  tcath  tlieni  more  tlearly  the  ri^hta  of  l»giB- 

ktora,   ibtiT  obllKatlona  to  ohi-dinniv,  and    the  prnnlti'-.i  of  rtibrllian.      All  thi*  U 

bty  wbIL     But  my  huoiirablv  and  l««inii«l  Trii-iid  |thi>  Atturnvy-tienmd]  oa  tba 

|iwr,  who  coniUacandt  to  nutrk  what  I  oay  (ijr  uiinudvenioa,  vtrll  diadain  th«(  greontL 

9<  haa  heard,  ■■  well  at  1,  tint  wliiin  Krmt  honon  and  Sicat  eniolumonta  do  »ot  BUI 

or«r  thia  knowlnlge  to  the  trryici-  of  llw  Mal«,  it  la  a  (ormidablo  adTewity  lo  gonra- 

nent.     ir  the  ii|ilril  bo  Tint  inmrd  and  hrokau  by  tbnM  happy  mnthoda,  it  ia  atnbhum 

a«d  lltigiocui.     Akuitt  ituJiit  in  tnorf.     Tlua  otmiy  mdm  nan  tenf,  iBqudlUTX, 

driknua.  prooapt  in  attw-k.  mitly  in  dtfencc,  full  of  naounaa.    In  uthar  CMiitjiw, 

the  people.  n»re  simple  and  of  a  less  itivrv^urial  coat,  judge  of  an  ill  principle  io  gov- 

antnnnl  only  by  an  actual  ([ripvan™;  here  lli»y  antluljiala  the  crU,  and  jadgo  td  th* 

fiimun  of  tho  ^arani:'  liy  thu  badnnu  of  the  prineipla.    Tbay  auRur  roiiBoTeniraait 

1  •  diaUMB,  and  aniilf  th«  Biii.nwnh  of  lyrsuoy  in  wwy  tainted  brataa. 

"Tha  laat  camw  of  thli  diwhtdient  ipirit  in  thu  coloniea  ia  baldly  laaa  powerful 

an  the  rert.  aa  it  ia  not  merely  monl.  but  1ai<l  dM>p  in  the  naturat  foutiiation  cf 

hing*.     Throe  ikouaand  miln  of  oennn   lie  between  yxu  and  them.     No  contrivanM 

pretmt  th*  effix't  of  thU  <Iii>tanu>  In  wrakeninK  goveniineni.      Saaa  roll,  tmd 

ntba  paaa,  baawMii  the  nnler  and  tfa«  «x«vutioii;  and  the  rant  of  a  apacdy  #iplaBa- 

I  at  ■  ilBglB  poiM  U  «»oagk  to  dafeat  a  whota  ayatHD.     Ton  ham,  indeed,  wingad 

I  of  Tf  ngiaanea,  who  «BrTT  yow  bolia  in  tlidr  ponrma  to  tha  ramotaat  lotgs  of 

Um  ai«.     Bnt  thetv  a  powvr  atrpa  hi  that  tliMta  Iha  anoganea  of  mging  paeons  and 

fctiona  alemonia,  and  aya,  'Bo  far  ahalt  iboa  |m  aud  no  tarlher,'     Who  are  you 

Aat  ahoiild  frM  a»d  tafta,  and  bita  iha  nhatna  of  natara  >    Nothlnic  won*  bippena  to 

^foa  thaa  doea  to  all  nationa  who  bar*  axtanaiira  aaipirv  |  and  it  happcna  in  alt  tha 

isto  whiefc  «pir*  eaa  bo  thrown.     In  higa  faodiaa  the  drenlation  of  foww 

'  Molt  ba  liaa  Tigorona  at  tlie  eittemitira.     Natara  haa  laM  ft.    The  Tarii  caanot  (or. 

•m  Egypt  and  Anhla  and  Curdiatan  a>  ha  goracM  Thnoaj  not  hat  h*  tha  mau 


124 


HISTORY  or  THE  COLONIES. 


[BOOK  I. 


for  the  former  purjMMes.  With  a  view  to  conciliation,  another 
act  was  pasAcd  at  a  late  period  (in  IS  Geo.  3,  ch.  12),  which 
declared  that  Parliament  would  not  impose  aQy  duty  or  tax  on 
the  colOTiicfl,  except  tor  the  repnlation  of  commerce ;  and  that  the 
net  produce  of  audi  dut}',  or  t^ix,  sliould  be  applied  to  the  use  of 
the  coloDj  in  which  it  was  levied.  But  it  failed  of  ila  object. 
The  spirit  of  roatstancc  had  then  become  etubboni  and  tmcontrol- 
luble.  The  colonista  were  awake  to  a  full  sense  of  uU  their  rights, 
and  habit  had  made  them  firm,  and  cominun  sufTuriugs  had  made 
them  acute  as  well  as  iudigimiit  in  Uic  vindication  of  their  privi* 
legi.'tf.  And  thus  the  straggle  wus  maintained  on  each  side  with 
unabated  zeal,  until  the  American  Revolution,  llie  Peclaration 
uf  Iiitlrpeiulencc  embodied  in  a  (wrraanent  form  a  denial  of  such 
parliamentary  authority,  treating  it  as  a  gross  and  unconstitu- 
tional usurpalioiL 

§  171.  The  colonial  legislatures,  with  the  rcstrictinns  nccea- 
sartly  arisiug  from  their  dependency  on  Oreat  Britain,  were 
Bovcrcign  within  the  limits  of  their  respective  territories.  But 
there  was  this  difference  among  them,  that  in-Maryland,  Conn^c^ 
ticut,  and  lUtodo  IsLond  the  lawg  were  not  required  to  l>e  sent  to 
the  king  for  his  approval;  whereas,  in  all  the  other  colonie«  the 
king  possesiicd  the  power  of  abrogating  them,  and  they  were  not 
final  in  their  authority  until  they  had  passed  mider  his  review.* 
In  respect  to  the  mode  of  enacting  taws,  there  were  some  differ- 
ences in  the  ori^nixation  of  tho  colonial  governments.'  In  Con- 
necticut and  Rhode  Island  tho  governor  had  no  negative  upon 

doniaton  in  CritUM  ud  Algfer*  which  he  hM  U  Bnw  imd  Smpna.  Dapotiion  timit 
u  obli|^  to  track  aad  bvobtcn  Tbe  Saltui  g(U  n*ch  obnlieaca  u  W  on.  Ho  g»T- 
etiu  villi  ■  kradN  ran,  that  b»  loajt  gmem  at  all ;  utd  tba  what*  of  tha  torn  Mid  lifsr 
of  hit  aaUiority  In  hi*  oMti*  li  d«riFfil  from  <  pradrat  nluatkin  in  all  kU  horittt, 
Spala,  in  h«r  (irovinon.  U,  piriiap^  net  w  wU  obeytd  u  fva  an  in  joun.  Slia  oom- 
plka  boi  ahe  wilnnlra;  iha  WBtoha*  Umw.  TU»  i*  the  imnutlAbl*  coaditMn,  t%» 
•ttnu]  Uw,  of  rxtavrira  and  detKhed  «nif«ic 

"Tbm,  Sir.  bom thiwtisMptulHiuiM^— of dMr^ni:  aribnn  nfginnminniiUor 
nUglMB  in  the  NtitttMni  ptonnoMi  of  mMiicni  in  tka  Soulbirn;  oT  sdiMatioBi  «f  tlw 
IMtotmii  of  dtuallMi  tnm  lh«  flnt  nnrcrof  forimint.  —frsu  all  thna  oaaiM  a 
fitaea  ipiiil  of  libsKy  h««  jruwn  np>  It  hM  gnnra  «itk  Iha  Biwa"l>  ^  tK*  peaf\e  in 
jmu  cokniid,  aad  incnaaed  viUi  the  iMrvMaa  nf  tbtjr  waallk;  a  tpirll.  that  nnhappajr 
m^ing  with  an  etnritr  at  povsr  in  Enxlaad,  shlch.  bo««vn  lawful  It  niit  iw-oudl- 
■hlit  lo  any  idMi  of  11)>my,  much  ■««  rllk  tWn,  hai  kLodlad  Ihb  lUiMs  Hut  !• 
mdjr  t4  cMiaome  m."    S  Rurit*'*  Wariu,  SS-U. 

1  1  Cbwtbns'a  Aanaia.  MS,  SM;  1  Dong.  Sum.  907,  SOS. 
'   '  I  Vang,  Srana.  213. 


CB.  XVil.] 


GBKEBAL  BKHBT. 


125 


the  Ibwb;  in  Pennsylvania  the  couocil  had  no  ncj^iirc,  but  was 
mcrt-ly  udvisurv  to  thv  cwcutivc ;  in  MussochiiiHjtlK  the  coHncil 
was  choMn  hy  th«  legislature,  and  not  by  the  crown,  but  tbo 
tgorcrnor  had  a  nej^live  on  tlie  choiw. 

§  172.  (3)  In  nil  the  colonit-s  the  lands  within  th«ir  limits 
were  by  th«  very  tcnns  of  their  original  ^rantn  and  chnrten  to 
Ite  hoMon  of  the  crown  in  free  and  ooromnn  nocage,  and  not  fn 
eapitr,  or  hy  knight's  iKn-tc«.  They  were  all  holden  either  as  of 
tlie  manor  of  Kast  Qreenwlch  in  Kent,  or  of  the  manor  of  Hampton 
Court  in  Middlesex,  or  of  the  <:astle  of  Windsor  in  Berksliin;.' 
All  the  slaviah  and  military  part  of  the  ancient  feudal  tenures 
Iwaa  thus  effectually  prevented  from  taking  root  In  the  American 
|»oil;  and  the  colonists  escaped  from  the  opprcaaive  burdens, 
which  for  a  long  time  affected  the  parent  country,  and  were  not 
al>olished  imtil  after  the  restoration  of  Charles  the  Second.' 
Our  tenures  thus  acquired  a  uni venial  simplicity;  and  it  is  be- 
lieved that  none  but  freehold  tenures  in  socage  ever  were  in  nsO 
among  us.  No  trace*  arc  to  be  foand  of  copyhold,  or  gavelkind, 
or  borgago  tenures.  In  sliorl,  for  most  purposes,  our  lands  may 
bo  deemed  to  be  perfectly  allodial,  or  held  of  no  superior  at  all, 
though  many  of  the  distinctions  of  the  feudal  law  liavo  necessa- 
rily insinuated  themselves  into  the  modes  of  acquiring,  transfer- 
ring, and  transmitting  real  estates.  One  of  the  most  remarkable 
circumstances  in  our  colonial  history*  is  the  almost  total  absence 
of  leasehold  estates.  The  erection  of  manors,  with  all  their  at- 
tendant privileges,  was,  indeed,  provided  for  in  several  of  the 
eliarters.  But  it  was  so  little  congenial  with  the  feelings,  the 
^vanta,  or  the  interests  of  the  people,  that  after  their  erection  they 
'  gradually  fell  into  desuetude;  and  the  few  remaining  in  our  day 
'  »re  but  shadows  of  the  post,  the  relioa  of  fadi-d  grandeur  in  the 
last  steps  of  decay,  enjoying  no  privileges,  and  conferring  no 
|M)S'er. 

j  173.  In  fact,  partly  from  the  cheapness  of  land,  and  partly 
from  an  innate  love  of  independence,  few  agricoltuml  estate*  in 
the  whole  ountry  have  at  any  time  bc«n  held  on  lease  fur  a  stip- 
ulated rent.  The  tcnuntti  and  occupiers  are  almost  universally 
the  proprietora  of  the  soil  in  fee-simple.  Tlic  estates  of  a  mora 
limited  duration  are  prliicipnlly  those  arising  from  tlie  acts  of 
the  taw,  such  as  estates  in  dower  and  in  curtesy.     Strictly  speak- 

>  OrahsM't  HUt.  43,  44.  *  Stol.  II  Car.  1;  cb.  CI. 


126 


BiaTOBY  OP  THE  COLONIES. 


[BOOK 


iag,  therefore,  there  hut  ncrer  boon  in  this  country  a  dependent 
peoMuutrj-.  The  yeomanry  are  iibftolubc  ou-iicn  of  the  soil  on 
which  they  tread,  and  their  character  Ima  from  tliis  circumstnnce 
been  marked  by  n  more  jcalotia  watchfulness  of  their  righta,  and 
by  a  more  steady  spirit  of  resistance  againut  ever}-  encroachment, 
thai)  can  be  found  among  any  other  peoplo,  whose  hahita  and  pur- 
suits are  lens  homogeneous  and  independent,  less  in6ucnccd  by 
personal  clioicc,  and  more  controlled  by  political  circumstaneva. 

§  174.  (4)  Connected  with  this  state  of  things,  and,  indeed, 
as  a  natural  consequence  Howing  from  it,  is  the  simplicity  of  the 
system  of  conveyances,  by  which  the  titlca  to  estates  are  passed, 
and  the  notoriety  of  the  transfers  made.  From  a  ver)-  curly  period 
of  their  settlement  the  colonies  adopted  an  almoMt  uniform  modu 
of  conveyance  of  land,  at  once  simple  and  practicable  and  aafe. 
The  differences  ant  so  slight  that  Uicy  became  almost  evaneaoent. 
All  lamia  were  eonvfyed  by  a  deed,  commonly  in  the  fonn  of  a 
feolTmcul,  or  a  bargain  and  sale,  or  a  lease  and  release,  attested 
by  one  or  more  witnceses,  acknowledged  or  proved  before  some 
court  or  magistrate,  and  thnn  rcgistcre^l  in  some  public  registry. 
When  so  executed,  acknowledged,  and  recorded,  it  had  full  effect 
to  convey  tho  estate  without  any  Ijvery  of  seisin,  or  any  other  act 
or  ceremony  whatsoever.  This  mode  of  conveyance  prevailed, 
if  not  in  all,  in  nearly  all  the  colonies  from  a  very  early  period, 
and  it  baa  now  become  absolutely  universal.  It  is  hardly  possi- 
ble  to  measure  tho  beneficial  influencea  upon  our  titles  arising 
from  this  source,  in  point  of  security,  facility  of  transfer,  and 
marketable  value. 

§  175.  (5)  All  the  colonies  considered  tJiemselveti,  not  as 
parcel  of  the  realm  of  Great  Britain,  but  as  dependencies  of  the 
Britisli  crown,  and  owing  allegiance  thereto^  the  king  being 
their  supreme  and  sovereign  lord.'  In  virtue  (A  its  genera)  super- 
intcndcncy,  the  crown  conHtantly  claimed  and  esercisMi  tho  right 
of  entertaining  appeals  from  the  courts  of  the  last  resort  in  the 
colonics;  and  tliese  apjiculs  wero  heard  and  fimilly  adjudged  by 
the  king  in  council.*  This  right  of  appeal  was  secured  by  ex- 
press reservation  in  most  of  the  colonial  charters.  It  vras  ex- 
pressly provided  for  by  an  early  provincial  law  in  New  Hampshire, 

■  I  VcB.  m  !  Vughu,  R.  304,  400  :  Shotrtr,  Pari.  Ottt,  S^  81,  S3;  SS  i  ILm. 
Sute  Pqxnv  ^^■ 

*  I  Bbck,  CoMm.  131,  tti ;  CfaUcy  on  Pnroj.  29,  81. 


CU.  IVlI.j 


GBMBEAL  BBVIEW. 


127 


when  the  maUer  in  difference  exceeded  Qie  tra«  Talu«  or  mim  of 
jCSOO  eterliiig.  80,  a  like  colonial  law  of  Kliuilc  I^laud  wiui  en- 
acted by  its  local  le^iRlature  in  1719.'  It  wiw  treated  by  the 
crown  as  an  inherent  right  of  the  subject,  independent  of  any 
such  re«en*aticin.'  And  e»  in  divers  cases  it  was  held  by  the 
courtH  of  EnirUnd.  Tho  reafiona  given  for  the  opinion  that  tlic 
writa  of  errur  liv  to  all  the  dominions  belonging  to  England  upon 
the  uUimute  judgmenta  iiiven  there,  are,  (1)  That,  othervifle, 
the  law  ap|wint4.-d  or  pennitted  W  such  inferior  dominion  might 
be  considerably  ohang^-d  without  the  assent  of  the  superior  domin» 
ion;  (2)  Jitdgnient«  mi)flit  be  K>^'<-'ti  ^  ^*^  disadvantage  or  lea- 
seuing  of  tJic  superiority,  or  U>  make  the  superiority  of  the  king 
only,  and  not  of  tho  crown  of  England ;  and,  (S)  Tliat  Uie  prac- 
tice liaa  been  accordingly.' 

§  176.  Notwithstanding  tlic  cloarncKs  with  which  this  appellate 
jurisdiction  was  an^erted,  and  iiplicid  by  the  principles  of  the 
common  law,  the  exercise  of  it  watt  not  genoriilly  as.<tiime<l  until 
about  1680 ;  and  it  was  not  then  conceded  ns  a  matter  of  right  in 
all  the  colonies.*  On  the  contrary,  Massachusettn  reainted  it 
under  her  first  charter  (tlie  right  of  appeal  was  exjiresaly  re- 
served in  that  of  1691);  and  Rliode  Island  and  Connecticut  at 
first  denied  it,  as  inconsiBlcnt  with,  or  rather  as  not  provided  for, 
in  thcire.'  lUiode  Island  aoon  after  surrendered  her  opposition.* 
But  Connecticut  continued  it  to  a  later  period.*  In  a  practical 
sense,  however,  the  opitellate  jurisdiction  of  Ihc  king  i«  council 
was  in  full  and  nndisturlwd  exercise  throuRhout  the  colonics  at 
the  time  of  the  .\n)erican  Revolution;  and  waa  deemed  rather  a 
protection  than  a  grievance.' 

>  NT*  Hunpihin  Ptot.  Uw«.  «dit.  1771,  p.  T,  Act  of  U  WiU.  8,  dk  i  ;  Bbodo  U> 
«nd  ton,  tAit.  374*.  p.  78. 

»  1  P.  Will.  30  ;  Chitty  on  Prwng.  A.  S. 

■  V>iif[hitD'»  Ibp.  MO;  MS  ;  Sbov.  Pirl.  Cua,  »0.  M.  82,  3S  ;  1  V««.  444 ;  Sukn'a 
Colaa.  9S,  sn,  »)  :  S  U.  Riynt.  1447,  144S ;  I  Chalm.  AtUwU  139.  3M.  871.  078, 
«84  1  aifutiu  «.  OoTYtT.  1  P.  Will.  U.  8»  i  Au.-G*a.  9.  Stomfl,  S  Mctml^  B.  1*3, 
)H  I  Bn  >.  Covlr,  S  Biwr.  8*4.  BSS,  SSI.  »a :  Pibrigw  *■  UMtrn,  Owp.  1 74  ;  1  Douj. 
gDam.  »<  ;  8  Wilmi'a  Worici.  S80 :  *  Oulm.  Otda.  177.  SO. 

*  CUilr  on  Pmofc.  ch.  8,  pp.  S8,  la  1 1  CiuOn.  Opia.  StS :  1  Pltk.  Hbt.  ISl.  138, 
]»,  125,  la* :  1  CWlia.  hatudt,  188,  1(0,  STS  ;  i  Mu*.  HwL  CoIL  189. 

'  1  Ctalw.  Amnak  ST7.  S80,  3»7,  804,  411,  44S,  402 ;  3  Dou(.  SunM.  174  ;  Hntck. 
CoIL  SSO.  lis,  M»  i  3  HaUh.  Uiit.  5S». 

*  3  Doug,  atmrn.  »T  ;  S  tluUh.  CoIL  413.  418. 

t  3  Dqa«.  Su>m.  194  ;  1  Pilk.  ftut.  128  to  129. 

*  I  ban  tn  my  pOMtMioo  >  pristol  cm*,  Tlwiiwi  Fonlqr  o-  Waiddd  CotbI^sw, 


128 


HISTORY  OP  TUB  COLOKIES. 


[BOOK  t. 


§  177.  (6)  Tlioutih  the  colonics  had  a  common  origin,  and 
owed  a  common  ullc)^auv«,  and  tlic  iiibubitaut«  of  each  were 
British  KubjeetM,  thi-y  had  no  direct  political  connection  with 
esch  other.  Each  was  independent  of  alt  the  others;  each,  in 
a  limited  sense,  was  sovereign  within  Us  own  territory.  There 
was  neither  alliance  nor  confederacy  between  them.  The  assem- 
i)1y  of  one  Province  could  not  make  laws  for  annthcr ;  nor  confer 
priviloges,  which  were  to  be  enjoyed  or  exercised  in  another, 
fnrther  than  they  could  1>e  in  any  independent  foreign  state.  As 
colonies,  they  were  aUo  excluded  from  all  connectione  with  fur- 
eign  states.  They  were  Icnown  only  aa  dBpend(;nciL'»;  and  they 
followed  the  fat«  of  the  parent  country  l>oth  in  peace  and  war, 
without  having  assifnifd  («  th«m,  in  the  intercourse  or  diplumacy 
of  nations,  any  dititinct  or  indei»endent  existcnw.'  Thry  did  not 
poaaess  the  power  of  forming  any  league  or  treaty  among  them- 
selves which  should  acquire  an  obligatory  forw-  wtlltuut  tlio  as- 
sent of  the  parent  state.  And  though  tltcir  mutual  wants  and 
necessities  often  induced  them  to  aasociato  for  common  purposes 
of  defence,  these  eonfcderaeies  were  of  a  casual  and  temporary 
nature,  and  were  allowed  as  an  indulgence  rather  tlian  a  right. 
They  made  several  efforts  to  procuro  the  establishment  of  some 
general  superintending  government  over  them  all;  but  their  own 
differences  of  opinion,  as  well  as  the  jealousy  of  the  crown,  mado 
these  efforts  abortive.'  These  eiforta,  however,  prepared  tlwir 
minds  for  the  gradual  reconciliation  of  their  local  intere«t8,  and 
for  the  gradual  development  of  the  principles  upon  which  a  union 
ought  to  resiy  rather  than  bronght  on  aii  immeiliate  sense  of  the 
necessity  or  the  Itlessings  of  such  a  general  government 

§  178.  But  although  the  colonies  were  independent  of  caeh 
other  in  respect  to  their  domestic  concerns,  they  were  not  wholly 

brongkt  Matv  ttw  pmnar  ud  eoinidl  of  N*«  York  rroin  the  NpRmv  nniit  of  ti 
FrvnB'»,bg<i>p(al,imiTit.    TlitpratqMMioiiina,  wtNOHruinMA/orwritoft 
kjr ;  uid  the  Judjp«  at  Ihe  «BptciH  oMrt,  and  the  oonnea  held,  tku  n»  tiipn] 
for  Uut  «ouM  b*  t«  r*.«xainM  hota  aettkd  by  Uw  vvnliet  of  •  jot^.     The  linuUnuit 
gOTcrnor  ilinriitmt.     It  «u  agmd  on  aU  Mm  thU  vn  ofjitnl  in  ouuer  of  Uw  i 
wajr  at  writ  of  trror)  Ujr  to  Ibr  king  in  ooqdcU  tram  ell  }uil«nwnU  In  the  o«lanin ;  Imt 
not  «e  to  matten  «f  (wt  in  Mdl*  at  roenBon  U*.     Il  n*  alea  held,  that  in  all  ttej 
eoloalw  the  Mbjecte  ttny  wUh  th«m  the  kn  of  Sn^ lanJ,  ami  thrnfon  h  veO  I 
vliich  took  j-Uf  after  M  Uioee  wUch  wav  in  foKv  beGm  Higna  Cbarta. 

1  1  ChaluL  Amiah,  SaS,  Wt.  <M. 

*  1  ritk.Hut.llO.  111.  US.  143,114,14s,  ]««,(»  :SR>i;Coll.;  I  Hank.  I 
«fa.  1^  p  191 ;  3  Rotch.  Oiit  11.  13.  St. 


CB.  XVII.] 


OBNSBAL  BETIEW. 


129 


alion  to  ejich  other.  On  the  contrarr,  thoy  were  fuHow-8ubjcct«, 
anil  for  iiiaiiy  {Hirposes  one  people.  Every  culoiu»t  bud  a  ri);ht 
to  inhabit,  if  he  pleased,  in  aiiy  oth«r  colony;  and  m  a  British 
Huhjpct  be  was  capalile  of  inheriting  lands  by  descent  in  e^i-ry 
other  colony.  The  commercial  intercourse  of  the  colonies, 
too,  was  reg:ulated  by  the  general  laws  of  the  British  Bnipirv, 
and  could  not  bo  restrained  or  obstructed  by  colonial  legislation. 
The  remarks  of  Mr.  Chief  Justice  Jay  on  this  8Ubj<?ct  are  equally 
just  and  striking.  '^All  the  people  of  this  country  were  then 
subjects  of  the  king  of  Great  Britain,  and  owed  ulle^iniice  to 
him;  and  all  the  civil  authority  then  existing,  or  ewrcised 
here,  flowed  from  the  head  of  the  British  Empire  Thoy  were, 
in  a  strict  sense,  /^Wow'-subjects,  and  in  a  Taricty  of  respects  cm 
jKOjtU.  When  tlie  Revobitioit  commenced,  the  patriots  did  not 
assert  that  only  the  same  aihnity  and  social  connection  subsistMt 
between  the  people  of  the  colonies  which  subtiisted  between  the 
people  of  Gnul,  Britain,  and  Spain,  while  Roman  provinces,  to 
vrit,  only  that  af&iity  and  social  connection  which  result  from 
the  mere  circumstance  of  being  goreniccl  by  the  same  prino& 
Different  ideas  prevailed,  and  gave  occasion  to  the  Congress  o( 
1774  and  1775."' («> 

t  Chisliolm  ■>.  St>l«  of  Gtorgii.  3  DilL  <TOl 

(o)  It  b  plain  thU  th«  wraral  Ani«r- 
iem  StUo  mtc  novra  tally  uid  in  ill  re- 
9p»cU,  M  ngudi  fath  otbrr.  indcpeoilcDt 
SMm,  »»  UiU  Utm  b  ipplbd  in  tbe  U« 
of  natioM.  On  Ui«  coMnty,  th*  iMrnnl 
aadiar  UkM  piUu  to  point  oat  lliil  out 
|il*»iit  (oranmoit  I*  the  nicninor,  with 
BodUed  powtn,  of  thU  wtilcli  f>>mii:ily 
poMCBfil  NBtbotiljr  OTvr  tlixlil  h!1.  rnuT 
to  tlic  RiiVDlalion.  oprtain  poirm  of  gov. 
munnnl  mrc  rKTciiH  oyn  nil  the  cc4- 
Mrf«a,  vlilttr  M  p««lainin(c  to  tb«  crown  of 
Gnat  Britain  or  tbc  I^lrliA^lent !  luit  tha 
rightful  extent  of  thoH  poB*r»  •ad  ham 
br  [Miwwil  t7  the  Pullun^nt,  and  how 
hrnaling  in  thrrrown,  wnv  thtqimtloM 
In  i)bpnt«  vUcb  M  l«  lb*  Berglulkni. 
n*t  the  braw  goTwamtat  piaMted  an* 
tfc«rit]i  otw  tha  ■otjcpti  of  p«f  md  ww, 
and  had  tlw  |t"n*nJ  diroctlan  of  oomaiM- 
dal  lalweonrM  vilh  othar  natio«a>  •>•«  of- 
tan  Ibanulljr  conoedcd  Vj  tha  odnniw 
TOt.  I.— ft 


An<)  Ihe  dlHputcH  Iftwrtn  thpm  ud  tba 
hom«  gorrniiuect  nlatni  |iKnci|iall)r  to 
oUin  iDBtlsri  which  thr  ooloniiti  iiuialcd 
trtn  within  the  csdiuivo  control  oT  tlie 
Iocs)  laginhitami, 

7^  t«n(Ivnry  amnug  thv  tulonlila  to 
tatabliKli  a  more  iutimat*  and  volBntaijr 
union  aniong  thnnaclwa  might  fom  the 
anbjoct  of  one  of  thn  moat  lnlar«attB||[ 
dkaptn*  in  Atiir.rivnij  liistory.  Tha  H«« 
Engtaud  OiHifwl«raD]r  uf  1B43.  the  laoifo- 
nty  Congreai  of  IttO,  thr  plan  of  (Jnloa 
^[rMd  upon  In  the  Coavrnllun  of  ITSf, 
tb«  Hlamp  Act  CVingms  of  170S,  and  Bii> 
aily  th*  Conltnantal  Congrcaa  «l  1TTI, 
tut*  all  the  offliprlBg  of  a  dnrir*  amoajc 
Um  acMlartd  oolamea  of  Gnat  Biitaln  m 
AnMtka  to  atiMigtfaen  a»d  oxl«»d  tba  oam- 
Mwin  tlaa  t»  iMr  mulnal  «alr«r  and  inten- 
tion. Toall  tkiatliciaalooayaf  thahoma 
goTcraaomt  «oaatU«t«d  ■  ncrloua  imfi- 
iment,  bat  tha  dJSca]^  in  twnUng  as 


180 


HISTOBT  OP  THE  COLONIES. 


[BOOKL 


1 179.  HaHoK  considered  some  of  tLo  particulars  in  wliich  the 
political  orffamiuition  aud  public  rights  aud  juri<lical  policy  of 
the  coloDies  «ero  noarly  similar,  it  reioaiiu  to  notice  a  few  in 
vbicb  tJicrc  were  iiuportaiit  diflterencea. 

(1)  As  to  the  cotirse  of  descents  and  distributioa  of  intcetate 
estates.  And  here  the  policy  of  different  ccdouios  was  in  a  great 
measure  determined  by  the  nature  of  their  orijnoHl  sovemmcnta 
and  local  positions.  All  the  Southern  colonies,  including  Vir- 
ginia, adhered  to  the  course  of  deaccnta  at  the  common  law,  as 
we  have  had  occanton  to  »ee,  down  to  the  American  Revolution. 
As  a  natural  con»et|ucnce,  real  property  wait  in  thuau  colonies 
generally  held  in  large  masBes  by  the  families  of  ancient  proprie- 
tom;  the  yoanper  branches  were  in  a  great  mciwure  dc}>L'tidcat 
upon  the  eldest;  and  the  latter  asHnmL-d  and  supported  somewhat 
of  the  pre-eminence  which  belonged  to  baronial  poeseBaiona  in 
the  parent  country.  Virjfinia  was  so  tenairious  of  entails,  that 
she  would  not  even  endure  the  barring  of  them  by  the  common 
means  of  fines  and  rocoreries.  New  York  and  Xew  Jerecy  si- 
lently adhered  to  tho  Enfflish  nilo  of  des4.'cnts  under  tht'  irovom- 
mcDt  of  the  erovi-n,  as  royal  pronnccs.     On  the  other  hand,  all 


•naiig«m«nt  u  to  llw  profsr  ntMuie  of 
autboritf  to  ha  Mncodod  U  any  pfopNed 
cnnfnlua'T'  or  oonitratv  ma  m  otaUoU 
niUinor*Mdini».  TTi«  hlttaryof  IlieCoo. 
v<«tUNicf  1751  b|«Tti<iulari7iiutnietiT«. 
ScaXr.  Bnnttto|»n  Ju«<Mfc,K.  A.  B«r., 
T«).  XX.XV11I.  p.7S,<(•^  AtlMtUiit 
Mlonin,  hy  formtl  dc«lHUiai,  lliraw  off 
■ll>gi«ne»  to  dM  oivw>  t  bnt  orm  ibtv 
Atf^A  not  otMalo  hH«»CMMiM«  iw>^ 
tional  IhmI,  for  It  vu  ilirou^  the  t>*o- 
luiinnr;  ConpvM  Uwt  iBdeptodenc*  wa* 
il(d»m^  ukd  tfait  bod;  hnd  Blrdady,  b; 
mwiiwii  eoDwiit,  taken  «pon  itatU  thoa* 
f&mma  o(  txttiwl  cMitral  whiek  fatfbN 
had  kec*  MDOaM  to  tiia  crawn  or  tlw 
Pw41a»«nt,  togtthar  a^th  snch  otlimi  ai 
111*  eminjcmjj  Jt«ni«d  to  tall  for.  Thocv 
]K>wen  bmng  ondiAm],  the  CttngitM  a« 
a  national  aatfaaritf  conU  atiawnr  a  ten- 
pMBij  parinat  oolf.  but  what  vaa  doAB 
Uienaftar,  in  MtabbUag  tlk*  Anletn  ot 
Conlf^MatUa,  aad  timi  la  aabailtiUing 
for  thiaa  ilm  work  of  iht  Comaation  of 
1787,  waa  not  far  tlie  pwpMe  «(  ctMlil^ 


(at  tlie  fint  time  a  ooonmon  anthoritj  (m 
Statoa  bttoia  lEhoUjr  lnd«p*n<kat  of  eaeh  I 
olh«r,  but  <na  dona  hj  ntj  of  BodUylait  i 
dpflaing,  alnncthstiiii^  anil  im^ttng  J 
man  tftatvt  aad  ondnring  an  exiating'  - 
antbari^,  tluoii([h  whidi  atiHic  thoj  vera 
knnim  la  tiit  hmily  of  nationn. 

"Tbr  rninii."  It  la  laid  is  Iha  tnanf^j 
nial  adilraaa  «f  IVnaidcnt   LiMohi,    *■!■ 
nnoh  olOer  tlian  the  Oowtttntkai.     It 
ma  fanntd  in  (att  b;  tha  Ankle*  of  la- , 
•odattatt  *t  I77t.   It  waa  laalBMl  uii 
Matinnrd  by  tlia  Dectaiallan  of  lDdrpaail< 
(BoaoflTTS.    It waa tarAu natuTed, awA ] 
tba  tOA  of  all  tbo  tlian  tklitaaa  Slataa  < 
pnaair  ptighud  and  »n(e>i[nl  tliat  it  abaali 
ba  [Krpitua]    by  ibc  Artkfaa  of  CsaM-^ 
(niion  in  1778,  and  fitullr.  fai  1787,  i 
«i  lb«  defhnd  abfarta  in  ofdaitiiBg  aad  | 
crtabUiUog  tho  CoMtltntlM  nt  *  loffrm* 

Foar  a  bfW  aoeouiit  if  ibt  Oalonkl 
OaafadMada^  lk«  irailsr  ia  tar«tnd  In 
Mr.  Toale-t  AnalTafa  ot  Uw  CCMUHwlk^., 
pp.  Ue,  a  teg.    C 


CO.  ivtl] 


GBNCBil.  RETICW. 


ISl 


Npw  Fn^jland,  with  th«  preoption  of  Rhode  Istaml,  from  a  very 
early  jwriod  of  their  settlpraenta,  adopted  thfl  rule  of  dividinir 
the  inheritance  equaUy  among  all  the  rhitdren,  aud  other  next  of 
Itiii,  fiivinii  a  double  share  to  the  eldest  Ron,  Maryland,  after 
1715,  and  PennsylTatiia  almoot  from  its  aettlctncnt,  in  like  man* 
ner  distrihoted  the  isberitaoce  amonR  all  the  children  and  other 
next  of  kin.  New  IlampithiriD,  althoii)rh  a  royal  province,  stead- 
ily clung  to  the  tt^iitcm  uf  Massachusetts,  which  slw  had  received 
when  she  formed  an  integral  part  of  the  latter.  But  Rhode 
Island  retained.  ii«  vc  have  already  seen,  its  attacltmeiit  to  the 
common-lnw  rtilc  of  descent*  down  almost  to  the  era  of  the 
American  Revolution.' 

§  180.  In  all  the  colonies,  whi-rc  the  rule  of  partible  inhcrlt- 
inee  prcratlcd,  estates  were  soou  parcelled  out  into  moderate 
plantations  and  farms;  and  the  jieneral  erpiality  of  pro[iorty  in- 
Inxlttced  hahit«  of  indtutrr  uid  economy,  the  effects  of  which  are 
still  I'iaihie  in  t>M>ir  local  nistomit,  institutions,  and  public  pol- 
foy.  The  philosophical  mind  can  ftearcely  fail  to  trace  the  inti- 
mate conneetiott  which  naturally  aubsisls  between  the  ^neral 
eqnality  of  the  apportionment  of  property  among  the  mass  of  a 
nation  and  the  popular  fnnn  of  itfi  governmenL  The  former  can 
■oarcely  fail,  first  or  last,  to  introduce  t)ie  aiihatance  of  a  republic 
into  the  aetnal  administration  of  the  government,  thnuifh  ita 
forms  do  not  bear  such  an  external  impress.  Our  Revolutionary 
statesmen  were  not  insensible  to  this  silent  but  potent  influence; 
and  tlie  fact,  that  at  the  present  time  the  law  of  divisible  inhpr- 
itnnccs  {terrades  the  Union,  is  a  strong  proof  of  the  goncml  sense, 
not  merely  of  its  equity^  but  of  ita  political  importance. 

§  181.  A  very  euriotia  question  was  at  one  time'  agitated  bo- 
fore  the  kin;^  in  council  upon  an  appeal  from  Connt-eticut,  how 
far  tlie  statutes  of  descenta  and  distributions,  dividing  the  estate 
among  all  the  children,  was  conformable  to  the  charter  uf  that 
colony,  which  required  the  laws  to  be  "not  contrary  to  the  laws 
of  the  realm  of  f^igland."  It  was  »(ion  that  occasion  decided, 
that  the  law  of  descents,  giving  the  female  as  well  as  Uie  main 
heira  a  part  of  the  real  estate,  was  repugnant  to  the  charter,  and 
therefore  void.  Tlii«  determination  created  great  alarm,  QOt 
only  in  Connecticut,  bat  elsewhere ;  since  it  might  cut  deep  into 

1  T«  ITTO.  OM'dBti  *.  CoUini,  3  PeUn'*  Sap,  CX  B.  M. 
»  la  ITW. 


132 


BISTORT  or  TBR  OObONTKS. 


[book  I. 


tlie  legislation  ot  the  other  colonies,  and  disturb  the  foundation 
of  maiiy  titles.  The  decree  of  the  council,  annulling  the  law, 
was  upon  the  urgent  application  of  some  of  the  colonial  agents 
revoked,  and  the  taw  reinstated  with  its  oblifratory  force'  At 
a  fltill  later  period  tho  mimo  quration  svums  to  h«*-c  boon  pre- 
sented in  a  somewhat  different  sbupv  for  tlie  cousitleratiun  of  tJio 
Uw-olTioerfl  of  the  crown;  and  it  may  now  be  gathered  an  (lie  rulv 
of  voiiHt ruction,  that  even  in  a  colony,  to  whicli  the  benefit  of 
the  lan-8  of  England  is  cxprcsaly  extended,  the  law  of  descent*  of 
En^lnnd  is  not  to  be  deonit-d  us  necessarily  in  force  there,  if  it  is 
iuupplicablc  to  their  situation;  or  at  least,  that  a  choni^o  of  it 
is  not  beyond  the  general  competency  of  the  colonial  legislature.* 
§  182.  (2)  Connected  witli  tliis,  wo  may  notice  the  strong 
tendency  of  the  colonies  to  make  lands  liable  to  the  payment  of 
debts.  In  some  of  them,  indeed,  the  English  rule  prevailed  of 
making  lands  liable  only  to  an  extent  upon  an  elegit  But  in 
by  far  the  greatr-^t  number,  lands  were  liable  to  be  set  off  upon 
appraisement,  or  sold  for  the  payment  of  debts.  And  lands 
were  also  apacta,  in  cas«a  of  a  deficiency  of  personal  property,  to 
be  applied  in  tho  course  of  administration  to  dis^rhargo  the  debts 
of  the  party  deceased.  This  wan  a  natural  result  of  the  condi- 
tion of  the  people  in  a  new  country,  who  poeaesaed  little  moneyed 
capital,  whose  wanta  were  numerous,  and  whose  desire  of  credit 
was  correspondcntly  great  The  true  policy  in  such  a  state  of 
things  was  to  make  land,  in  some  degree,  a  substitute  for  money, 
by  giving  it  all  the  facilities  of  transfer,  and  all  the  prompt  ap- 
plirability  of  pcnonul  property.  It  will  be  found  that  the  growth 
of  the  respective  colonies  was  in  no  small  degree  affected  by 
this  circumslanco.  Complaints  were  made,  and  perhufM  justly, 
that  undue  priorities  in  payment  of  debts  were  given  to  the  in- 
habitants of  tho  colony  over  all  other  ere<ditoni;  and  that  occa- 
sional oWtnictions  were  thrown  in  the  way  of  collecting  dcbta.' 
But  the  evil  was  not  general  in  its  operation;  and  the  policy, 
wherever  it  was  puntued,  retarded  the  growth  and  stinted  the 
means  of  the  settlements.  For  the  purpose,  however,  of  giving 
greater  secmrity  to  creditors,  as  well  as  for  a  more  easy  rer^very 
of  dobt«  due  in  the  plantations  and  colonies  in  America,  tho 

>  1  Pitic  BuL  la.  I3«. 

*  AtL-Gn.  «.  Stoaut.  S  Ucriv.  B.  113.  1S7,  US.  IW. 
■  1  Ouim.  Amuh,  «K,  999. 


CH.  xrii.] 


GENKRAL  REVIEW. 


188 


statute  of  5  Geo.  2,  ch.  7  (1782),  among  other  things  declared, 
that  all  housea,  landx,  negroea,  and  other  hereditaments  and  real 
estates  in  the  ptanlationt)  ithoald  be  liable  to,  and  chai^^^blc 
with,  the  dcbta  of  the  proprietor,  and  be  aniteta  for  the  eatisfac* 
tiuu  thereof,  in  like  miuuier  as  real  eatates  are  by  the  law  of  Eng- 
land liable  to  the  sutisfaction  of  debta  due  by  Imnd  or  otlier 
Specialty,  and  shall  be  subject  to  like  remedies  in  courta  of  law 
and  equity,  fur  seixinji,  cxtcndinf;,  selling,  and  disposing  of  the 
Samo^  toward  satisfaction  of  such  debts,  in  like  manner  as  per- 
sonal c«tates  lu  any  of  such  plantations  are  seized,  extended, 
sold,  or  disposed  of,  for  satisfaction  of  debts.  Ttiis  act  dues  not 
aeem  to  have  been  resisted  on  the  part  of  any  of  the  colonics  to 
whom  it  peculiarly  applied.' 

§  183.  In  respect  to  the  political  relations  of  the  colonies  with 
the  parent  country-,  it  ta  not  easy  to  atate  the  exact  limits  of  the 
dependency  which  was  admitted,  and  the  extent  of  sovereignty 
which  might  be  lawfully  cserciaed  orer  thcra,  either  by  the 
crown  or  by  Parliament  In  regard  to  the  crown,  all  of  the  col- 
oniea  admitted  that  they  owed  allegiance  to  the  king,  as  Iheir 
Boverpign  liege  lord,  though  the  nature  of  the  powcni  which  he 
might  exercise,  as  sovereign,  were  atiU  undefined.' 

§  184.  In  th<>  ailenee  of  express  declarations  we  may  resort  to 
the  doctrines  maintained  by  the  croum-writers,  aa  fnmiabing  if 
not  an  exact,  at  least  a  comprehensive  view  of  the  claims  of  the 
fxiyal  prerogative  over  the  colonial  establiiihments.  They  consid- 
ered it  not  necessary  to  maintain  that  all  the  royal  prerogatives 
exercisable  in  England  were  of  course  exercisable  in  the  colonics, 
bat  only  such  fundamental  rights  and  principles  as  constituted 
the  basis  of  tho  throne  aud  its  authority,  and  without  which  the 
king  would  cease  to  bo  sovereign  In  all  his  dominions.  Henoo 
the  attributes  of  sovereignty,  perfection,  perptuity,  and  irrespon- 
sibility which  were  inherent  in  the  political  capacity  of  the  king, 
belonged  to  him  in  all  the  territories  subject  to  the  crown,  what'- 
ever  was  the  nature  of  their  laws  an<)  government  in  other  re- 
spects. Everywhere  he  waa  the  head  of  the  Church  and  the 
foantain  of  justice;  everywhere  he  was  entitled  to  a  share  in  tho 
legislatjon  (except  where  he  had  expressly  renounced  it) ;  every- 
where he  was  generalissimo  of  all  forces,  and  entitled  to  make 

1  TeUair  r.  6Um\,  3  Cnncb,  447. 

■  IbalwU'iCoka.  tt.  18,  r-  SU 1  3  WUmh'*  W*rk«,  234. 237,  S38,  ill .  SIS.  SIS. 


184 


HISTOBT  OP  THE  O0I/>NtES. 


[book  I. 


peace  or  war.  But  minor  prerogatives  might  be  yielded,  where 
they  were  inoonaifitetit  with  the  lawa  or  uu^^  of  the  place,  or 
were  inapplicable  to  the  condition  of  the  people.  In  crerj-  ques- 
tion that  respected  the  royal  prcrugutivvH  in  tbi'  culouies,  vrborc 
they  were  not  of  a  strictly  fundtimeutal  nature,  the  firat  thing  to 
lie  considcn-d  who.  whi-thcr  tlit!  chartvr  of  the  purlicular  colony 
coataiuod  uuy  vxprc-iu  pruviHiun  un  the  subject  U  it  did,  that 
was  the  guide.  If  it  was  silent,  then  tJic  royal  prerogatives  were 
in  the  colony  preci»ply  the  name  as  in  the  parent  e^>untrv;  for 
in  sndl  cases  the  common  law  of  England  was  the  common  lav 
of  the  colonics  for  such  puri)a8eB.  Hence,  if  the  colooial  charter 
contained  no  i)C<:uliar  grant  to  the  contrary,  the  king  might  erect 
courts  of  justice  and  exchequer  therein;  and  the  colonial  judica^ 
torics,  in  point  of  law,  were  doemod  to  emanate  from  the  crown, 
under  the  modifications  made  by  the  colonial  asaemblira  under 
their  charters.  The  kin^  sUu  mi^lit  extend  the  privilege  of 
sending  representatires  to  new  towns  in  the  eolunial  usBemblios. 
lie  might  control,  and  enter  a  nollf  protequi  in  criminal  prose- 
cuLions,  and  pardon  crimes,  and  release  forfeitures.  He  migfafc 
pnMcnt  to  vacant  bcncfiocs;  aud  lie  was  entitled  to  royal  moneyi 
trcasurc-trorc,  csdieats,  and  forfeitures.  No  colonial  assem- 
blies liad  a  right  to  enact  laws,  except  with  the  as84>nt  of 
crown  by  charter,  or  commission,  or  oUicrwise;  and  if  they 
occdcd  the  authority  pre»tcrilied  by  the  crown,  their  acts  wore 
void.  The  king  might  alter  the  constitution  and  form  of  the  gov- 
ernment of  the  colony,  where  there  was  no  charter  or  other  cou- 
fmnatory  act  by  the  colonial  aaaembly,  with  the  assent  of  Uio 
crown ;  and  it  rented  merely  on  the  instmctionB  and  eoounissions 
given,  from  time  to  time,  by  tJic  crown  to  its  governors.  The 
king  had  jiower  also  to  vest  in  the  royal  governors  in  the  coIo< 
ales,  from  time  to  time,  such  of  his  pruroi;ativ4.>s  as  be  should 
please ;  such  ua  the  power  tu  prorogue,  adjourn,  aud  dissolve  the 
colonial  assemblies ;  to  confirm  acts  and  laws,  to  pardon  offences, 
to  act  as  captain- gene  nil  of  the  public  forci-s,  lu  ap)>uint  public 
officers,  to  act  as  chaucullor  and  supreme  ordinary,  to  sit  in  the 
highest  court  of  appeals  and  errors,  to  exercise  the  duties  of  rice- 
admiral,  and  to  grant  commissions  to  privateers.  Tbcso  last, 
and  some  other  of  the  prerogatives  ot  the  king,  were  eommODly 
exercised  by  the  royal  governors  without  objection. 
$  18%   The  colonial  assembUes  wore  not  ccmaidered  as  stand- 


gfa£— 


CB.  XIII.] 


GEKBBAL   BETtEW. 


186 


ini;  on  tbc  Mine  footing  as  Parliainmt  in  respect  to  rights,  pow< 
on,  uid  pririlugcs;  but  as  dcrinng  all  their  cuergios  from  the 
crown,  snd  limited  by  the  respective  charter*,  or  other  con6rma- 
tory  tict«  ol  the  cronii,  ta  all  their  prococdingB.  The  king  mtf^it, 
in  respect  to  a  colonial  assembly,  saseQt  to  an  act  of  usKcmbly 
before  it  met,  or  ratify  it,  or  dissent  from  it,  after  the  seiision 
waa  closed.  Ho  might  accept  a  surrcndor  of  a  colonial  charter, 
subject  to  the  rights  of  third  persona  previooaly  acquired,  and 
give  the  colony  a  new  charter  or  othenriso  institute  therein  a 
new  form  nf  government  And  it  has  been  even  contended  that 
the  king  might,  in  cases  of  extraordinary  necessity  or  emergency, 
take  away  a  charter,  where  the  defence  or  protection  of  the  inhab* 
itants  required  it^  leaving  them  in  posscssitni  of  their  ciril  righta. 

§  1S6.  Such  are  some  of  the  royal  prerogatives  which  were 
sapposed  U>  exist  by  Hbe  crown-n-riters  in  the  colonial  establish- 
ments, when  nut  rcKtr^nod  by  any  )]oiiiti\'C  charter  or  bill  of 
rights.  Of  thvse,  many  were  uudisi>iit4.-d;  but  otbem  wore  re- 
sisted witli  pcrlinucily  and  effect  in  the  colonial  assemblies.' 

§  187.  In  rt-gard  to  the  authority  of  Parliament  to  enact  laws 
which  sliould  be  binding  uj>on  them,  there  was  quite  as  much 
(rtMCurity  and  still  more  jealousy  spreading  over  the  whole  sub- 
ject.' The  government  of  Qreat  Hritain  always  niaintuined  the 
doctrine  that  thfi  Parliament  had  authority  to  bind  the  culuuice 
in  all  coses  whatsoerer.*  No  acts  of  Parliament,  however,  were 
undcretood  to  bind  tiie  colonies,  unless  exprfwaly  namn)  thor^iu.* 
But  in  America,  at  different  time«  and  in  different  colonies, 
different  opinions  were  entertained  on  the  subject.*  In  fact,  it 
seemed  to  l>e  the  policy  of  the  coloniefl  as  much  as  possible  to 
withdraw  them»elTc«from  any  acknowledgment  of  such  authority, 
except  so  far  as  tlietr  necessities,  from  time  to  time,  compoUed 

>  Tb*  nader  oiU  And  the  tntgeet  af  th«  roj^  prerog&tit*  in  tho  coIowm  diwwMrj  *t 
lugaiaCkitlTm  lh«  PrwotptiTH of  tbe  Cnrao,  eh.  3,  pp.  lata  W)  inSUhMMillu 
CaaMiwUon  of  tha  C^olonltM,  pattim ;  In  Chnlmen'i  AhmIi  at  lb«  Calonia;  and  in 
Cbatnen'*  OpiBioM,  t  Tofa.  fiamim.    Sw  >!»  Omi.  IHr.  PlttoiptlT*. 

t  1  piik.  Rbt.  Kl  to  m.  laa.  Ite.  IM,  DDO  to  SOS  :  A|ip.  M.  Ko.  0  :  U.  493. 
tit :  S  Wil»D'i  Woriii.  MS.  338.  3I<\  3(1.  Hi,  SiS ;  )  WU»n'i  Worb,  «1.  BS,  S8  ; 
UiM,  SUlo  r^pm.  ass.  U>.  Si4.  »a  ta  Kt ;  l  Ktk.  Uirt.  SflS. 

*  3  Wilam'i  Work*.  (OS  ;  I  Cbdni.  .lauli.  1 M.  ««7,  WO ;  SMhw't  COen.  U9. 

*  1  BlMk.  Cmm.  107, 10« :  Chitty  oo  PnroK.  i*. 

*  1  Ktk.  Ulrt.  IM,  IM.  300  to  S05,t0«,  tM ;  Manhall'i  Colon,  ah.  It,  p.  «M ;  1 
Cbittjgal>n>«K.a»i  1  OwlnHn'*  OpinioM^  IM  totU;  1  Pidc  Hut.  ok.  «.  p.  tOS 
toSI2 


186 


HISTORT  OF  THR  COLOMEa. 


[■OOKI. 


tbera  1o  acquiotwc  in  the  parliamt'atury  moaflurcs  expreiwljr  cx- 
teodin);  to  Uicm.  Wo  have  alrciuly  He-en  that  tiivy  resiiitcd  the 
impoditiun  of  tuxes  upon  thoui  without  the  couiuint  of  thuir  local 
Icgiiiluturi'A,  from  a  very  cnrl}'  period.' 

$  186.  But  it  WW  hy  no  meaii8  an  unccnnmon  opinion  in  some 
of  the  colonics,  especially  in  the  proprietArv  and  eluirter  Rorcni- 
mcnt«,  that  no  act  of  Parliament  whataoevcr  cwild  bind  them 
without  their  own  consent.'  Aa  extreme  reluctA»c«  vnn  iihowa 
bj  MassachiLtPtts  to  aur  purlianientary  interference  a»  early  u 
1640;*  and  the  famous  Navigation  Acta  of  1U61  and  ]($60  were 
perpetually  eroded,  even  when  their  authority  woa  no  longer  de- 
nted, throughout  the  whole  of  Xcv  England.*  UawiadiuiicttM,  in 
1679,  in  an  addreBa  to  the  crown,  declared  that  she  "apprehended 
them  to  be  an  invafiion  of  the  rights,  libertica,  and  propertioa  of 
the  nubjects  of  hia  Majesty  in  the  colony,  they  not  beinji:  repre- 
senlod  in  Parliament;  and  aecording  to  the  usual  sayings  of  the 
learned  in  the  law,  the  luw«  of  England  weru  bounded  within 
the  four  Heaa,  and  did  not  reach  America. "  "  However,  Masso- 
chuwttto,  OK  well  aa  the  otJior  New  England  coloni(^>)<i,  finally  ac- 
quicaoed  in  the  authority  of  Parliament  to  n.'^ilHtc  tnido  and 
commerce,  but  denied  It  in  regard  to  taxation  and  internal  reg- 
ulation of  (he  colonies.*  Aa  late  aa  17r>7  the  Geucral  Court  of 
HaMftchusetta  admitted  the  constitutional  authority  of  Parlia- 
ment in  the  following  words:  "The  authority  of  all  acta  of  Par- 
liament, which  concern  fbe  colonies  and  extend  to  them,  is  ever 
ackuonk-dged  in  all  the  courts  of  law,  and  made  the  rule  of  all 
judicial  proceedings  in  the  Province.  There  is  not  a  lucmher  of 
the  Oeneral  Court,  and  we  know  no  inhabitant  within  the  bounds 
of  the  gov'cniment,  tliat  ever  questioned  tliis  authority."'  And 
in  another  addreaa  in  1761,  they  declared  that  "every  not  wo 
make,  repugnant  to  an  act  td  Parliament  extending  to  tlte  plan- 

1  U«nh«iri  Colon,  ck.  It,  p^  US )  t  PiA.  Hirt.  BV.M,  *«.,  U  ;  l<L  IM,  ITt,  17«, 
183  to  tlS  t  Uum.  SttU  Pipna,  US  to  S<4. 

*  1  Pitfc.  HiM.  91 ;  1  Chalm.  Atattlt,  I4S. 
■  S  WUUiNp'*  Jour.  ItS. 

*  I  Oubn.  Anub,  S77.  380,  407,  440.  413,  448.  tSS.  MD^  483;  «*Si  ««8 ;  nnlek. 
CoD.  498;  Um«.  »tat«  PHprnflSlS).  iDtnduetioa  ;  Id.  SO;  3  Wibcm'*  We«ki^  83. 

*  1  Clialm.  Aaa.  407  ;  1  nutoh.  Hut.  X3S ;  3  WJban's  Work*.  Ct,  88. 

«  1  ritk.  [list  9S.  98.  ISI  to  S12.  I8S.  4TS,  476;  1  CUIm.  AknI*,  4&1  480  ;  I 
Hutcb.  Hi«t.  SSS ;  t  nattk.  R1>L  33,  34 ;  DunoMt'a  EMmo*.  1  Anxtkau  TncI*.  $1 ; 
Burks'*  Spefch  on  TuutM  la  1774,  and  on  Ctmailitiien  ia  t77S>. 

)  8  Uvtcli.  HiO.  Wj  Hm.  StMe  I^pon,  397. 


CH.  xvn.] 


OENEBAL  BEVIKW. 


187 


tationa,  is  ip9« facto  null  and  void."'  And  At  a  lutcr  period,  in 
1768,  in  a  circulur  address  to  tbo  other  colonicK,  they  admitted 
"that  his  Majeaty's  high  cotirt  of  Parliament  is  th«  supn-mc  le- 
jrislativo  power  over  the  whole  empire;"  contending,  however, 
that  as  British  subjectA  they  could  not  he  taxed  witliout  their 
Swn  consent.' 

j  189.  "In  the  Middle  and  Soathem  prortnc«a,"  we  arc  in- 
formed hy  a  most  respectable  historian,'  "no  question  respect- 
ing the  supremacy  of  Parliament  in  matters  of  frencral  legialation 
exiated.  The  authority  of  such  acta  of  internal  regulation  as 
verc  made  for  America,  aa  well  aa  thoae  for  the  regulation  <^ 
commerce,  even  by  the  imposition  of  duties,  provided  lho»e  duties 
-were  imposed  for  the  purpose  of  regulation,  had  beon  at  all  tin>ca 
admitted.  But  thews  colonies,  however  they  might  acknowledge 
the  supremacy  of  Purliameot  in  other  rvs|iectB,  denied  tltc  right 
of  that  body  to  tax  them  internally. "  If  tlicrc  were  any  e.\(!«p- 
tion3  to  the  gent-'tnl  ueeuraey  of  thla  statement,  they  Mcem  to  havo 
bc<eu  too  few  and  fugitive  to  impair  the  general  rcsulL'  In  the 
t.charter  of  Pennsylvania,  an  express  r«ser\'ation  was  made  of  the 
F:powcr  of  taxation  by  an  act  of  Parliament,  though  this  was  ar* 
gued  not  to  bo  a  suflieicnt  foundation  for  the  excrciite  of  it* 

§  190.  Porhapfl  tlic  best  general  sunnnnn,'  of  the  riffhts  and 
liberties  asserted  by  all  the  colonies  is  eontuined  in  the  cele- 
brated declaration  drawn  up  by  the  Congress  of  the  Nine  Colo- 
nies  assembled  at  New  York,  in  October,  17tJ6.*  That  declaration 
asserted  tJiat  the  colonists  **  owe  the  same  allegiance  to  the  crown 
of  Great  Britain  that  is  owing  from  hia  aubjecta  bom  within  the 
realm,  ajid  all  due  sulxirdi nation  to  that  august  l>ody,  the  Parlia- 
r^Blfintof  Great  Britain."     That  the  ooloniata  "are  entitled  to  all 


1  %  Hukh.  RM.  K  i  Ajigw  MS ;  Hanhall'*  Colon.  Hol  S,  ^  173. 

•  llinhalI'vCMoii.rli.  13.P.371;  A|-i>.Ko.S,pp-47S.471;l  hlk.  HUt  18«;  App. 
' '  448,  iSO,  at,  4M.    ThU  ww  tliB  pwtA  aMtilud  in  Mr.  S.  Utts'i  otlrbntad  t"^ptiUt 

on  tlMlU^Uaof  IheCblaoiMt  1  Anwricm  Tmeta  {WOfl],  48.  CS,  H.  H.  M.  S>.  n, 
,B9  ;  uhI  ■!»  in  DnUnj'i  CoridawtJoiH  on  Tutng  the  GolonMo,  1  Anwr.  Tneli^  14, 
i  18.  M.  52.    Si*  »Im>  I  itiloMMt'M  Cams|i.  S,  7,  I'i. 

•  UarriwtriiCaliHi.  ch.13,p.U4.    Sn  alw  1  Pitk.  Hiat.  in  t«SlS,U5,S7&,  tTA; 
I  JrfTmon'*  CociMp'  4.  7,  1M  :  liL  117. 

•  1  Pitk.  Hirt.  n.  M,  98,  lU  (o  IlSj  App.  Vo.  4.  4(8.  ISO,  418. 

•  I  Cludinen'*  Anaali,  Ctt,  CSS :  3  Anrriom  TncU,  Ki^Ku  of  Putin.  Tiad.  IS,  IB ; 
S  Antr.  Tntt^  Apfi.  SI ;  Id.  Fnaklio'i  Ex»m.  4C. 

•  Th»  nina  SutM  wtn  MMwcbiuelU.  Rhoda  lilnd.  CorawttMil,  X«»  Ycofe;  HtW 
lm»y,  pMiiMylvanb,  IMtwnn,  UmjUdiI,  muI  BoaVa  CuoUna. 


188 


amORT  OF  TUB  COLON1B9. 


{kedKL 


tJic  inherent  ri^ts  tnd  liberties  of  his  [the  king's]  natitral-bon) 
cubjecU  within  the  kingdom  of  Great  Britain."  "That  it  U  ia- 
•opaml)!}'  eiuentinl  to  the  freedom  of  a  people,  am]  the  undoubted 
right  of  Hu^liahmen,  that  no  taxes  be  imposed  on  them,  bat  with 
their  own  consent,  given  pemonailr,  or  by  tlioir  repnacntotivoo! " 
That  the  jtcoplu  of  the  "  oolonit-s  are  not,  and  from  their  local 
ciretunDUmees  cannot  b«,  repreitentcd  in  the  House  of  Commons 
of  Great  Britain.  That  the  only  rcprcBentatircM  of  these  oolonies 
Are  persons  chosen  tlicrcin  by  thcmselTca ;  otid  that  no  tax  ever 
has  been,  or  can  be,  constitutionally  imposed  ii)>on  thetu,  but 
by  their  res]>ective  legislatures.  That  all  Bii{>j>lics  of  the  crown 
l>eing  free  gifts  from  the  people,  it  is  unreasoimble  and  inconsist- 
ent with  the  principles  and  spirit  of  the  IlritiAh  Unn»titutioD  for 
tlic  people  of  Great  Britain  to  grant  to  his  Majesty  tlio  property 
of  the  colonies.  And  that  the  trial  by  jury  is  the  inherent  and 
invahiable  right  of  ev-ery  British  subject  in  tlicsc  colonies." ' 

{  ItU.  We  here  obserre  that  the  8U[>(>rinteniiing  authority  of 
Parliament  is  admitted  in  general  terms;  and  that  absolute  inde- 
pendence of  it  is  not  ercn  suggeiited,  although  in  eiibseijuent 
clauses  certain  griGvancca,  by  the  Htauip  Act,  and  by  certain 
acta  levying  duties  and  reatraining  trade  in  the  colnniea,  are  dis- 
approved of  in  viTv  strong  language.*  In  the  report  of  the  com- 
mittee of  Uie  fiitme  body,  on  the  aobjcct  of  colonial  rights,  drawn 
Qp  with  great  ability,  it  was  stated:  "It  is  acknowledged  that 
the  ParliunR-nt.  collectively  eonsidcn-d,  as  conBioling  of  king, 
lords,  and  eommons,  are  the  naprfme:  legidiUvre  of  the  whole  em- 
pire; and,  <u  «H<;A,  have  an  undovUed  jurttdittion  over  the  wAoIs 
ttAmttttt  »9  far  a»  it  wmitUnt  vUh  ovr  r«»rntial  riijhu,  of  which 
Also  tboy  are  and  must  be  Uie  final  judgvs ;  and  even  the  appli- 
cations and  i>etiti»us  to  tlie  king  and  Parliament,  to  implore 
relief  in  our  present  difliciilties,  will  be  an  ample  recogni- 
tion of  our  subjection  to,  and  dependence  u)>on,  the  l^slature."* 
And  they  contended  that  there  ia  a  vaat  difference  between 
the  exercine  of  parliamentary  jurisdiction  in  general  acts  for 
the  amendment  of  the  common  hiw,  or  e^'cn  in  general  r^u- 
lations  of  trade  and  commerce  through  the  empire,  and  the  act' 
ual  exercise  of  that  jurisdiction  in  levying  external  and  Internal 

>  Hanli.  niM.  CokaiM.  eh.  13,  pp.  SSO,  tTO.  UI :  1  fitk.  Ubt.  ITS,  119, 180,  M«. 
■  lUnk.  Hbt.  Coba.  p.  471,  Mta  t. 
•  rUk.  QIM.  4IS,  iM. 


CH.  XTII.] 


GESLail.  EWriEV. 


189 


dutira  and  tuxm  on  the  colooiste,  while  they  neither  are,  nor  can 
be,  represented  in  Parliament'  And  in  the  petition  of  the  eame 
body  to  tho  Hoiuo  .of  Commuiu,  thvro  iit  the  following  declara- 
tion :  "  We  must  sincerely  recoguixc  our  aUcfniu><^  to  the  crown, 
and  acktiuwledf^  all  due  aul>ordi nation  to  th«  Purliamont  of  Great 
Britain,  and  shall  always  retain  tlkc  luoat  grateful  senao  of  tlwir 
DMiatance  and  protection."*  Hut  it  is  added,  there  Is  "a  mate- 
rial distinction  in  reasDn  and  sound  policy  between  tlic  necessary 
exercise  of  parliamentary  jurisdiction  in  gtntral  att*  for  the 
amendment  of  the  eommtnt  iow,  and  tie  r^uiation  of  tradt  and 
eommtret  throu-jh  th-.  whrUe  empirt,  and  the  exercise  of  that  juris- 
diction by  imposing  taxea  on  the  colonies;*"  thus  admitting  the 
former  to  bo  rightful,  while  denying  tlie  latter.* 

§  l»i  But  after  the  paasage  of  the  .-itanip  Act,  in  176S,  many 
of  the  colonies  began  to  examine  this  subject  vilh  more  care, 
and  to  entertain  very  different  opinions  as  to  i>arliamentary  au- 
thority. The  doctrines  maintained  in  debate  in  Parliumeut,  as 
well  aa  the  alarming  extent  to  which  a  practical  application  of 
thoae  doctrines  might  lead,  in  drying  up  tlic  reauurcca  and  proe- 
tratiug  tho  strcniith  and  prosperity  o(  th«  eoloniea,  drove  them 
to  a  more  close  and  narrow  survey  of  the  foundation  of  parliamen- 
tary' supremcy.  Doubts  were  soon  infused  into  their  minds,  and 
from  di)ul)ts  they  paased  by  an  easy  transition  to  a  denial,  Gratf  of 
tlie  power  of  taxation,  and  next,  of  all  authority  whatever  to 
bind  them  by  ita  laws.*  One  of  the  mo«t  diatingui sited  of  our 
writers^  during  the  contest  admits  tliat  he  entered  upon  the  in- 
quiry "with  a  view  and  expectation  of  being  able  to  trace  some 
OOOStitutioiial  line  between  those  cases  in  which  we  ought  and 
those  In  which  we  ought  not  to  acknowledge  tho  power  of  Parlia- 
mcut  over  us.  In  the  prosecution  of  liis  ini)uiries,  he  became 
fully  convinced  that  such  a  line  does  not  exist;  and  that  there 
can  l>o  no  medium  between  acknowledging  and  denying  that 
power  in  all  cases." 

§  19S.    If  other  colonies  did  not  immediately  arrive  at  the  same 

>  1  rilk.  Bi>L  453,  ^H.  ■  «  AiMT.  lIuMmn,  •». 

■  4  \ma.  Uuatnni,  8»,  SO. 

*  The  oelibnUd  JecbntlDa  of  tb*  righta  of  tlw  wkale*,  by  Congrto,  in  1*74 
(bcmftcr  cited),  coMUlaaanuiiiiuryiiot  ttwutitlly  ditfew t.  1  Jonnt.  of  Congrao, 
Site  SI. 

*  1  J«SwMa'  C«n«|>.  0,  7. 12,  104  io  1141 

*  S  WUmo'*  Woriu,  tot  i  Ham,  SUto  raprn,  S3»,  tW. 


140 


HISTOHY  OP  THE  COUtHOB. 


[book  I. 


concluaioD,  it  was  easjr  to  foresee  that  the  Btniggle  woald  ulti- 
mately be  maintained  upon  the  general  ground;  and  that  a 
common  intoreat  and  a  common  desire  of  nx-uril}-,  if  not  of  in- 
depcntlcnce,  would  gradually  bring  all  tJio  coloniva  to  f<.'«l  the 
absolute  nocesaity  of  adhering  to  it,  bb  their  truest  and  mdesi 
defence.'  In  1778,  Maiuachusetta  found  no  dilViculty  in  cuntend- 
ing  in  the  broadest  terma  for  an  uuliintted  independence  of  Par* 
liamont;  and  in  &  bold  and  decided  tone  denied  all  it«  power  of 
legislation  over  tht-m,  A  distinction  was  taken  betvccii  subjco 
tion  U>  Parliament,  and  allogiunct-  to  the  croTiu  The  latter  WM 
admitted;  but  the  former  wu  res4>Iutcly  oppoecd.'  It  is  remark^ 
able  that  the  Deelaration  M  Independence,  which  acts  forth  our 
grievances  in  Bucfa  warm  and  glowing  colors,  docs  not  once  raen> 
tion  Parliament,  or  allude  to  our  counoction  wiUi  it;  but  treats 
the  acts  of  oppression  therein  referred  to  as  acts  (A  the  king,  in 
cnniliinatinn  "  with  Others,"  for  tlie  overthrow  of  our  liberties.* 

§  11*4.  The  eolonies  generally  did  not,  however,  at  this  period 
concur  in  thcMj  doctrines  of  Massachusetts,  and  some  diRicultics 
antsD  among  them  in  (ho  discussions  on  this  subject  Even  in 
the  Dwrlaration  of  Rights* (a)  drawn  up  by  the  continental  con- 
gress in  1774,  and  ))rRsented  to  the  world  as  their  deliberat«  opin- 
ion of  colonial  privileges,  while  it  was  asserted  tliat  they  were 
entitled  to  a  free  and  exclusive  power  of  legislation  in  their  pro* 
Tincial  legislature,  in  all  cases  of  taxation  and  internal  policy, 
they  admitted,  from  the  necenaity  of  the  case,  and  a  regard  to  the 
mutual  interests  of  both  countries,  that  Parliament  might  pnss 
laws  bona  fide  for  the  regulation  of  external  commerce,  though 
not  to  raise  a  revenue,  for  the  purpose  of  securing  the  c(Hnmcr- 
cial  advantages  of  the  wholo  empire  to  the  mother  country,  and 
tbu  commercial  boacfits  of  its  rvspective  members.'    An  att«r 

<  1  WflMs'i  Worita,  SSI.  SSA,  SM,  IST,  2»,  397,  S» ;  9  WiliuB'tWotfa,  £1,  U,  &S 
to  tH:  1  fitk.  Hilt.  Its,  243,  StO.  iW,  349.  SSO  i  MaM.  SlmU  Pui^-n,  SSI.  333,  137, 
Sa»,  8l2ti>sai,S5au>3«t;  4  DvbnU'*  P«L  l)«b>la^U1,  &r.,  wAn;  UitA.  HbL 
tk  14,  pp.  411.  4S» ;  I  Jatb-Tvma  Cormp.  S,  7.  IS.  lOOb  IM  to  \Xt. 

>  M«».  Sun  t^ftn.  «<Ut.  181S.  pp.  S42  to  310.  SU  to  «M ;  1  Pttk.  HhU  SCO,  SSI, 
43X454. 

■  1  JtffM««M'« Oomap.  «,  7.  IS.  lWloll«. 

*  1  Ftik.  HUl  ns.  3M,  S40,  S(4  ;  Jonra.  of  CoaSRH,  1774,  H).  ».  » ;  Hank 
,CMca.  oh.  14.  p|i.  41!,  4S3. 

*  A*  thk  dooiUMDt  it  vnj  LupMtant,  uxl  not  mm\y  round,  iht  motoriil  claiww  will 

(d)  Bottk'a  Anwilaui  War,  ti.  4. 


CB.  xvn.] 


(tENEKAL  REVIKW. 


141 


denial  of  nil  pnrliamentarf  authority  wan  not  generally  main* 
taiuoci  until  after  independence  vm  in  the  full  contemplation  of 
most  of  the  coluniL-8. 


b«  hwt  eitrtcUil.     AlW  recitis];  DMnj^  mU  ot  grierknof,  the  DroUntion  procMds  gi 

foUoirt:  — 

"  Tb«  good  poople  of  the  uvenl  colonic  of  Kr«  HkRipiUn^  MimmIiiimiu  Bay, 

Khodc  IiUnil  and  tVoriiUnce  PlanUtloni,  OMUia^tlcnl,  Kvw  York,  Nvw  Jtrmj,  Pnitt- 

■jrlTUii*,  N'ewtastW,  Kent  imd  Suawx  on  DeUwuv,  UtrjUnA.  Virj^iiiU,  Kortli  Cn«> 

Una,  and  Sontli  C*roIiu>,  justly  lUriDPiI  at  Ihnc  nibitnrx  proomdingK  of  pKrlunwnt 

nnd  ndminwtntion,  barn  KVpnlly  olocti^,  conititutel.  nnd  4fipolnttd  dcpnliM  to  niMt 
I  nad  ih  In  (tntral  taapt^  In  the  titj  o(  riuladelfihk.  In  oidtf  t»  obtain  mch  mUV 
•  Uahmcnt,  •«  thftt  Uttit  n>tiglon.  lam,  anrl  lilwHira  luay  not  bi  lubrtrtcd :  Wlimupan 

llMdcputini  nappoinlHl  bviiig  □avnawmblt'd,  in  n  Tull  and  ft«e  RpnaeMttua  of  thoo 
,  csloniu,  Ukiiig  into  li»ir  moat  KTioua  consideration  tha  b«tt  DtHD*  of  tttaininn  Uia 

Mtda  aTorcMiil,  do  Ln  tbc  lint  plifr.  u  Bnglialimcn,  tlidr  amwatDn,  In  like  catca  kive 

Uully  ilunn.  for  acwrtins  ami  rlndirating  th'^tr  ritthu  and  libtrtiMv  declare, 

"Tliat  Iho  iii}iabiUiita  of  tbo  EiigliHh  Ruliinir«  iii  North  Auiario^  by  the  uumaUUo 

kvi  of  natan,  thn  princijiln  of  the  KiigUah  couoUtution,  and  tha  tmnl  ohattora  of 

compncti,  hare  the  following  biuutd. 
*•  flMoltad,  N.  a  D.  1.    Thatth^am  entitled  tollfo,  librrty,  and  propniy  i  and 

auj  hate  n«var  <«dad  to  uij  tonralgn  power  « hatvrvr  a  tight  to  dispow  at  either 

nithont  thrir  conatBL 

"  BMOind,  N.  C  D.  1.    That  ooi  anceiton  who  firat  aettlcd  thcae  colonUa  *im,  at 

Ito  tfana«f  thHrcaDlgration  ftom  the  mother  coutitrf,  entltM  to  all  tha  rights  Ilb«rtE«s. 
'  nd  linimniitiei  et  tree  and  natntal-boni  vul^'wta  witldn  the  nalm  of  Englaiid. 

"BcMlvcd,  H.  C  1>.  8.     That  by  inch  Mnigralion  tlicy  by  no  niaani  lirfalted,  anr- 

rmdand,  or  lo«t  any  of  IhoM  rtghta,  but  thai  thoy  «•r^  and  Uiiii  dmcendaata  now 

mn,  «atiiltil  lo  tbe  aMtda*  and  enjoyment  nf  all  aucb  of  tbian  m  their  local  and  Mitr 

cuonmntanoea  eoabU  than  to  vzMviia  and  enjoy. 

"  lUtoInd,  t,     ThAt  the  toundalion  of  Eiiglisb  liberty  and  of  all  free  goremmont  U 

■  right  in  tha  paopio  to  twttcipal*  is  thHr  legi^latini  toandl ;  and  ai  th*  EnsHth 

Mlonbta  as*  not  repraaeotad,  and  from  tbclr  local  and  otiiar  clrcnmUancw  can«ot 
':  fMfMtty  be  repniM«l«d  tn  tb*  Britlah  Parliament,  they  are  enlitlwd  to  a  fiae  and  «[• 

olndT*  paver  of  ItgUataon  Ln  their  Mveial  pMTioetel  legialalufM,  tihtn  thelf  right  o( 
',  itpcMMtation  0*11  tkne  be  ptoNcred,  in  all  eaM*  of  taaatinn  and  Mcnia)  ptity,  Mb- 
'  Jaet  anly  to  tbe  ntpilTa  of  tMr  aowwign  bi  mch  mamtr  at  bu  bean  hantefm  OMd 

and  aetMlomad.  Bnt  frmn  tW  naoaarity  of  tbe  <ur,  and  ■  rtgud  to  tbe  mutnal  !»• 
'  tenata  of  both  oonntriM,  we  ohMrfally  «omant  to  the  oiwraiion  of  a«ch  acta  of  the 
'  BritUi  Parliaatat  *a  are  Imui  Jtdt  tatttninad  (e  llie  ragnhlSan  of  our  aUsmal  «oH< 
!  ■(fe*v  for  tbe  tmrpaar  of  •ecnriaig  tbe  OMnHMnU  adfaatage*  of  the  wbele  mtfin  to 
I  tbt  MMbOT  coimtiy,  and  tha  eonunardal  bmiafila  of  ita  rrapeetlva  nesben ;  amlsdlng 

•Mty  id«a  ef  taxation,  inlamal  «r  axtemal,  Ibr  laUng  a  Mrame  on  the  anlileeia  fai 

AawHcB  «ithe«t  their  oona'nt. 
>*  RaeolTHl.  H.  C.  V.  fi.    That  tbe nspectineoloidea  anaotitlnl  tothaeoinmantav 

of  Ea^md,  and  man  eapeeially  to  tbe  gient  and  lawlimaMe  privikga  of  beli^  tiled 

I17  tb^r  pr«n  of  tbe  fkin^p^  aoeording  lo  tbe  coon*  of  tbat  la*. 
"Reaalvad,  0.    Tbat  tbey  are  entltlml  lo  tha  benett  of  aneb  of  tbe  E^Uah  ataiotaa 

ta  asJUed  at  tbe  time  of  their  mIomImUob  ;  and  wUch  they  hvn.  by  axpnfanoe^  t»- 
'  ipeotiTely  Ibnsd  t«  be  appUoahla  to  tbtir  aertral  local  and  otbci  drenawtnioea. 


14S 


niSTORT  OF  THE  COLONIES. 


[dock  1. 


§  195.  The  principal  gronnds  on  which  PnrUament  DMcrtcd 
the  ri^htto  make  laws  to  bind  the  colonien  in  all  ca«eft  whatso- 
lever  were,  that  tlic  colonies  were  originally  estahliahed  under 
charters  from  the  crowii ;  that  the  territories  were  dejiendencies 
of  the  ri-alm,  and  the  crown  coiild  not  by  its  gt^ts  exempt  them 
from  the  Huprcmc  legislative  power  of  Parliurnvnt,  which  extended 
wherever  tJie  sovereignty  of  the  crown  extended ;  that  the  colo- 
nist* iu  tlicir  new  scttlementa  owed  the  same  subjection  and  al- 
legiance to  the  supreme  power,  aa  if  they  resided  in  England, 
and  that  the  crown  had  no  authority  to  enter  into  any  compact 
to  jtnpair  it;  that  the  legislative  power  over  tlic  colonies  is  sn- 
preme  and  sovereign;  that  the  supreme  power  must  be  entire 
and  complete  in  taxation  as  well  as  in  legislation;  that  there  is 
no  difference  betwet-n  a  grant  of  dntiea  on  merchandise,  and  a 
grant  of  taxes  and  subsidies ;  that  there  is  no  difference  between 
external  and  internal  taxes,  and,  though  different  in  name,  they 
are  in  effect  the  same;  tliat  taxation  is  a  part  of  the  8o\-«reign 
power,  and  that  it  may  bo  rightfully  exercised  owt  those  who  arO 
not  represented. ' 

■BMolT-d,  N.  C.  D.r.   'nMa«M,UalbitM(j'*«il«alM,valil[<«t*eanUU«llo 
I  tb«  Imnwritt**  ami  jiciviltiBM  granM  and  ouuftiiunl  to  Oitmi  by  tcjiI  ehaUn,  or 
MCorad  by  Ifacir  nevntwX  <«dM  «f  ftorindal  l*m. 

"  BMoInd,  N.  C.  D.  S.  Tbftt  liunf  ban  a  rinftt  (momUt  to  MMiMbto,  oonridar  oT 
tlieirgiicvMMi^kiid  peUtloo  ihaldng-,  uxlUintkll  praMcutioiu,  pruhiUtorjr  iirotluiu- 
tiom^  uid  Mramitmentii  of  th«  «uiu^  an  illcpL 

■  BoMlnd,  K.  C.  D.  D.    TW  Uie  kMping  •  •tamUag  may  ia  Umm  Mkntai,  la 
'Vmmtl  pMca^  wiihant  lh«  conaent  of  tlw  ItKUautn  ttf  tbat  odmr  fai  whkk  ntk 
maj  h  litpt,  li  igitiiiiit  Uw. 

"  BoMlved,  El*.  C.  D.  10.     It  u  iiKUqi««i)ably  ncwuary  to  good  gorcroaieat.  anit 

Nudcral  wwntkl  by  tha  EogtUb  CoMtitatkoi,  Uiat  tbe  oooititninit  bnuioliaa  of  Uio 

>  l«|i*]atnnt  bo  JBdepcDdoDt  of  Mch  «UiBr ;   Hut,  litftM*,  lb*  autKbt  of  iefUatlT* 

IfOKvr  bi  wvcnl  ttAenint.  by  a  eoBBdl  appoIalMl  during  pleaiuw  iff  tibe  nown,  h 

UMonatiWtional.  daagttoni,  aad  derttwlivo  to  the  bM4am  of  Amotima  WgUbitiatL 

"AlludMcliof  wUeh  ifaa  abnMid  dejmtiei^  la  behalf  of  IhamwlTn  and  tMr 
coMtlUMKta,  do  elaia,  dauaad,  aad  faabt  OB,  ■•  tb«ir  ludsUtabl*  rigku  «i<l  libtttica^ 
wUd>  oaniMt  bo  Iqpiny  takm  fran  tbMK.  altond,  or  atrndgxl  hy  anjr  lower  what- 
tnr,  vtlhout  thair  ow«  cMueot,  bj  their  nrptOMitMitsi  bi  tlidr  mrml  prorindal 

TbeplaaofooBCiUationpiopaaedbjrtlH  ftMinclalfonvrMtuMor  X«w  York  u  1779 
nplkitljr  admiU  "that  boH  thenaooailjaf  th««aMOnat  Hritaia  dioa]diT|r°l>tE  th« 
|1»do  of  lb*  Kholo  tmfin  tat  lbs  gi-n«nl  tvnelit  o(  Ibc  wlKiln,  bat  no*  for  Iba  H^ante 
'  boii«nt  or  ativ  jttTttcnkr  [wtl."     1  Ktk.  Uiil.  ob.  9.  p.  S«4. 

1  1  nik.  Hial.  IM.  901.  m  SM,  sot,  M(t  aOS.  300.  tG7  ;  Haw.  8tM«  Vfm.  388. 
WD ;  1  Chalm.  AI■Bab^  IB,  «  ;  2  Vfbun'i  Uw  LacL  M  to  41  i  Chitt;  en  Ptong.  cb. 
8  i  1  Chain.  Opia.  IM  to  S2C 


CH.  XVI!,] 


GESEft^L  KSTrKV. 


148 


§  196.  The  grounds  on  which  the  oolonieg  resisted  the  n^t 
o£  taxution  by  rarHament  wore,  as  we  have  seen,  that  they  were 
not  represented  i**  Parliament;  that  they  were  entitled  to  all  the 
privileges  and  immunities  of  Bntitih  subjects;  that  the  Utter 
could  not  l>e  tnxed  but  by  their  own  rci)re»entative8 ;  that  repre- 
sentatjnn  and  taxation  were  inneparably  connected;  that  the 
principles  of  taxation  were  essentially  distinct  from  those  of  le> 
gislation ;  that  there  ia  a  wide  difference  between  the  power  of 
internal  and  external  taxation ;  that  the  colonies  had  always  en- 
joyed the  solo  rigtit  of  imposing  taxes  upon  themselves ;  and  that 
it  was  essential  to  their  freedom.' 

§  197.  The  Stamp  Act  was  repealed ;  hut  within  a  few  years 
afterwards  duties  uf  another  sort  were  laid,  the  object  of  which 
vaa  to  raise  a  rcrcnuc  from  importations  into  the  volonics. 
These  of  course  became  as  offensive  to  the  colonies  us  the  prlcn* 
attempt  at  internal  taxation,  and  were  resisted  upon  the  same 
groonds  of  uneonRtitutionuUty,^{a)  It  soon  became  obvious  that 
the  great  struggle  in  respect  to  colonial  and  parliamcntury  rights 
could  Hcareely  be  decided  otherwise  than  by  an  appeal  to  arms- 
Great  Britain  was  resolutely  bent  upon  enforcing  her  claims  by 
an  open  exercise  of  military  power;  and,  on  the  other  hand, 
America  scarcely  saw  any  other  choice  left  to  her  but  uncoodi- 
Uoaal  submission  or  bold  and  unmeasured  resistance.       ^ 


1  1  rttk.  niM.  199. 100,30I,SOS,90»,»t.S19,lS«ta38S.Sn.  4(S,«'l«.t4T,-148. 
4S3,  4U,  iM,  m  :  Mat*.  SMtc  Vtpn*.  Ui,  US,  SM  to  WI ;  4  Dsbiett'*  PuL  !>«- 
bam,  SSI.  Mt«.  fco. :  S  WOwn'ii  Uv  LeoL  64  ta  «L 

*  1  Pitk.  Hut.  Sir,  319,  kt. 

(a)  BotU'a  Amcricau  Wu,  b.  S. 


B 


HISTORY  OF  THE  REVOLUTION  AND  OF  THE 
CONFEDERATION. 


CHAPTER  L 


THE  REVOLUnON. 


§  198.  We  have  now  completed  cmr  survey  of  tho  origin  and 
political  history  of  tho  American  colonics  up  to  th«  p«rio<]  of  the 
Revolution.  Wo  have  examined  the  mom  importunt  coincidences 
and  difFercnceii  in  their  furms  of  government,  in  lh«ir  laws,  and 
in  thoir  political  iuMtitutiunn.  Wo  have  presented  a  general  out* 
line  of  their  actual  relations  with  th«  parent  country;  of  the 
rights  which  they  claimed;  of  the  dependence  which  they  ad- 
mitted ',  and  of  the  controvereies  which  existed  at  this  period,  in 
respect  to  sovereign  powere  and  prerogatives  on  one  side,  and 
colonial  rights  and  lil>crties  on  the  otJier. 

§  199.  Wo  are  next  to  proceed  to  an  historical  review  of  the 
origin  of  that  nnion  of  tho  colonics  which  led  to  tho  I>oclaration 
of  Independence;  of  the  effects  of  that  event,  and  of  the  subso- 
quent  war  upon  tho  political  character  and  rights  of  the  colo- 
nies; of  the  formation  and  adoption  of  the  Articles  of  Confed- 
eration; of  the  sovereign  powers  antecedently  exercised  by  tho 
continental  Congress;  of  the  powers  delegated  by  the  confedera- 
tion to  the  general  government;  of  the  causes  of  tho  decline  and 
fall  o(  the  confedcratiuu;  and  finally  of  the  establishment  of  tho 
present  Constitution  of  tho  United  States.  Having  disposed  of 
these  interestins;  and  important  topics,  wo  shall  then  Ix-  prepared 
to  enter  upon  tlie  examination  of  the  details  of  thut  Constitution, 
which  has  justly  been  de«me<I  one  of  the  most  prufomid  efforts  of 
human  wisdom,  ond  which,  it  is  believed,  will  awaken  our  ad- 
miration and  warm  our  affections  more  and  more,  as  its  cxocU 
lences  are  unfolded  in  a  minnte  and  careful  sur^'ey. 


CB.  I.] 


HISTORr  or  TSB  BEVOUrnON. 


145 


§  200.  No  r«dreA8  of  grif^voncM  haWng;  fnltoved  upon  Uw 
many  apjieaU  made  to  the  king  and  to  I'artiamrnt,  hy  and  in  be- 
half of  the  ooltmiea,  either  mdjointly  or  acparately,  it  h«camo 
obriouB  to  fhpm  that  a  closer  union  and  fo-oiwralion  were  neoefl- 
sary  tn  viadicato  their  rijrfita  and  protect  their  liljertiea.  If  a 
resort  to  arms  should  be  indispoosable,  it  was  imposaible  to  hope 
for  snwess  but  in  united  efforla.  If  poaoMblo  r«drcs8  was  to 
lie  sought,  it  was  as  clear  that  the  voice  of  the  oolonies  roust  bo 
hoard,  and  their  power  folt  m  a  national  orRanization.  In  1774, 
Haasachusetts  recommended  the  asHombl  in^  of  a  oontinontul  Con- 
grteB  to  deliberate  upon  tlie  state  of  public  alTnire;  and  accordini; 
to  h«r  recommendation,  delegates  were  appointed  by  Uie  colonics 
for  a  Congn«8  to  be  held  in  Philadelphia  in  the  autumn  of  tho 
snmc  year.  In  some  of  the  legislatures  of  the  colonies,  which 
were  then  in  session,  delegates  were  appointed  by  the  popular  or 
reprcBUitatiTO  branch;  and  in  other  ca^ieii  they  were  appointed 
hy  ooiiTCntions  of  the  people  in  the  colonies. '  The  Congress  of 
delegates  (falling  themaelfra  in  their  more  formal  acta  "the  del- 
egates appointed  by  the  ffooJ  people  of  these  colonics  ")  asisembted 
on  the  4th  of  tMiptember,  1774;'and  having  chosen  officcra,  they 
adopted  certain  fundaiiienlal  rules  for  their  proceedings. 

§  201.  Thus  was  organised  under  the  auspices  and  with  the 
oonaeut  of  the  people,  acting  directly  in  their  primary,  sovereign 
capacity,  and  without  tho  intervention  of  the  funetionariea  to 
whom  the  ordinary  powers  of  govommcnt  wore  delegati-d  in  the 
colonies,  tho  first  general  or  national  government,  which  has 
been  very  aptly  called  "the  revohitionury  govumment, "  sinoe  in 
Its  origin  and  progress  it  was  wholly  conducted  upon  rerulutioD- 
ary  principlen.^  Tbe  Congress  thus  assembicd  exercised  dt  facto 
and  dejure-  a  sovereign  authority;  not  as  tlie  delegated  agents 
of  the  governments  de  fado  of  the  colonies,  but  in  virtue  of 
original  powers  derive<l  fnun  the  i«v»ple.  The  revolntlon.iry  gov. 
crnment,  tlius  formed,  terminated  only  when  it  was  regularly 
superseded  by  the  confederated  government  under  the  articles 
finally  ratifie<l,  aa  we  shall  hereafter  see,  in  1781.' 

I  202.    The  first  and  most  important  of  their  acta  was  a  decla- 


t  1  Jonn.  «l  Omi»  t,  8.  ft&  IT,  4S;  »  DkntTtAbridg.  A^i.  f  5.  ^  16,  j  It,  p.  St. 

•  All  tb«  SulM  were  Mp(«nnt«l  Mcrpt  OmtbU. 

•  i  Dm*'*  AbrUc.  App.  p.  I,  f  I,  p.  I«.  1 13,  p.  19. 

•  Sti]pnrt  oa  ComC  IniTwl  7,  8  <U  «a.). 

MH.L  — 10 


146 


HISrOBT  OF  TOE  EBTOUmOW. 


[BOOK  II. 


ration  that  in  dctcrmiDing  questions  in  this  Congress,  each  oulony 
or  province  should  have  one  vote;  and  Uiis  became  tlie  estab- 
lished course  during  the  Itevolution. (a)  Thej  proposed  a  general 
Congress  to  be  held  at  the  same  place  in  Mat-  id  the  next  year. 
Thej  appointed  oommittees  to  take  into  consideration  their  ri^ts 
and  grievances.  They  passed  resolutions  that  "after  the  Ist  of 
December,  1774,  there  ahall  be  no  importation  into  British 
America  from  Great  Britain  or  Ireland  of  any  ^ruods,  Slc,  or 
from  any  other  place;,  of  any  such  goods  an  sbttH  have  be«n  ex- 
ported from  Great  Britain  or  Ireland;''  that  "after  the  10th  of 
Sfptembcr,  1775,  the  exportation  of  all  merehanditK;,  Ac,  to 
Great  Britain,  Ireland,  and  the  West  Indies  ought  to  coase,  un- 
less the  grievances  of  America  are  rcdn-xiu-d  before  that  time." ' 
They  adopted  a  dectanition  of  rightit,  nut  differing  in  eubstance 
from  that  of  the  Congress  of  1765,'  and  (ifBrming  that  the  rcspcc* 
Uve  ootonie*  arc  ciititlod  to  the  common  law  of  England,  and  the 
benefit  of  such  English  statutes  as  existed  at  the  time  of  their 
colonization,  and  u-hieh  tJicy  have  by  experience  respectively 
found  to  bo  applicable  to  their  local  and  other  circmniituncc& 
Hiey  also,  in  behalf  of  themselves  and  their  constituents,  adopted 
and  signed  certain  articles  of  association,  contjiining  an  agree- 
ment of  non>importation,  non-exportation,  and  noo-consumption, 
in  order  to  rarry  into  effect  the  preceding  resolves;  and  also  an 
agreement  to  discontinue  the  slave-trade.  They  also  adopted 
addresses  to  the  people  of  England,  to  the  neighboring  British 
colonics,  and  to  the  king,  explaining  their  grievances,  and 
retjiii'sting  aid  and  redress. 

§  208.  In  May,  1775,  a  second  Congress  of  delegates  met  from 
all  the  States.*  TJicse  delegates  were  choBcn,  as  the  preceding 
had  been,  partly  by  the  popular  branch  of  the  State  legislatures, 
when  in  session,  but  principally  by  ctmvcntions  of  the  people  in 

■*  I  Jour,  of  Omb.  II. 
•8«U)t«,i>.  139. 

•  0*01^  (Ud  not  Kud  ddqeatM  vnUI  tlu  IGth  «l  Jalf,  17rG,  who  did  not  uk« 
Ibaif  kbU  udUI  the  ISth  or  8«pU(nb«r. 


(a|  Ei|i»lily  ot  n^ammUtiaa  *d4 
ntbedt;  iru  lUo  iwUud  upoa  hy  Um 
wtaktr  colonio  b  th«  contntftw?  of 
1<I4!I,  anil  au  tha  prindpd  tovw  «(  Uu 
fonUvntalta  which  mom  to  WMken  iti 


tffldmer.  h\(irf,  Hitt-  of  I>ew  Eng- 
tend,  11.  aiS:  BwMfoft.  Hut  of  IT.  S., 
1.  420;  TMrlit,  Andf**  et  the  Caiatitn- 


en.  I.] 


UlSTOBT  OP  TBE  RBTOLDTIOK. 


147 


the  Tariotis  Stat«H.i  In  a  few  insbLntx'tt  tho  choice  by  the  le^R- 
latire  body  was  confirra«d  by  (hat  of  a  convention,  and  f  eonverto.* 
They  immediately  adoptoil  a  rcxolution  prohibiting;  all  exporta- 
tions  to  Quebec,  Nova  Scotia,  St.  Johti'a,  Newfoundland,  Ooor- 
gia,  I'xccpt  8t.  John's  Parish,  and  East  and  Wost  Fluridiu"  This 
wu  followed  up  by  a  resolution  that  the  colonics  )k^  inunodiatoly 
put  into  a  state  of  defence.  They  prohibited  the  receipt  and 
iM^tiation  of  any  Itritisli  government  billa,  and  the  supply  of  any 
provisions  or  nocesaarinfl  for  the  British  army  and  navy  in  Massa- 
ebmettfl,  or  tranaporta  in  their  scn'ico.'  They  recommended  to 
Kusachuactta  to  cunaidcr  the  ofRccs  of  governor  and  licuteuant- 
Rovcmor  of  that  Province  mcnnt,  and  to  make  choiec  of  a  council 
by  the  reprcsentalivoa  iit  ik«KembIy,  by  whom  the  powers  of  gor- 
ernment  should  be  exercised,  until  n  governor  of  the  king's  ap- 
pointment should  consent  to  govern  the  colony  according  to  its 
charter.  They  authorised  the  raining  of  continental  troo]M,  and 
appointed  Oencral  Washington  commnnder- in-chief,  to  whom 
tliey  gave  a  commiiision  in  the  name  of  the  delegates  of  the 
nnitcd  coIonicH,  They  had  previously  authorized  cortain  mili- 
tary mcafinren,  and  enpecially  the  anning  of  the  militia  of  New 
York,  and  the  occuiiation  of  Crovm  Point  and  Ticondcroga. 
They  authorized  the  emifution  of  two  millions  of  dollars  in  bills 
of  credit,  pled^ng  the  oolonicA  to  the  redemption  thereof.  They 
framed  nilea  for  the  government  of  the  army.  They  pnbliahcd 
a  Btilemn  declaration  of  the  causos  of  their  taking  up  armii,  an 
address  to  the  king,  entreating  a  change  of  mcasurom  and  an 
addreaa  to  the  people  of  Great  Britain,  rcqucating  their  aid,  and 
admonishing  them  of  thi?  threatening  oviUof  a  aeparation.  They 
crcctiMl  a  general  poat-olfiec,  and  organixcd  the  department  for 
all  the  colonies.  They  apportioned  the  quota  that  each  colony 
shonid  pay  of  the  biHa  emitted  by  Congrc«ft.' 

§  304.  At  a  aubse^iuent  adjournment,  they  authorized  the 
equipment  of  armed  vetuola  to  intercept  supplies  to  the  British, 
and  the  organization  of  a  marine  corpa.  They  prohibited  all 
exportatiooB  except  from  colony  to  colony  ander  the  inspection 

>  Sm  EVsliatloir  *.  Dmm.  S  D*!!-  54,  inil  iwticntNlr  Ik*  oplnkM  of  ImbQ,  J., 
uul  Bl>ir,  J.,  on  thia  poist.    JontvaJ*  of  1775,  pp.  7S  to  79. 

*  Jonnitli  or  Cbngna  at  1779.  pp.  73  t«  TV. 
■  Jonnwla  of  C«agt««  of  17TG,  f-  103. 

«  JoniMbof  Coagnwof  177J«.p.IlS. 

*  JounMlt  of  Congrut  o(  1775,  p.  177< 


148 


QISTORT  OF  THS  fiKTOLOTIOK. 


[book  n. 


of  conunitteM.  Tliojr  recommended  to  New  Hampshire,  Vir- 
giuia,  aiid  .South  Cftrolitia  to  call  conventions  of  the  people  to 
cetublisli  &  form  of  gov«minent'  They  authorized  the  grant  of 
oomiuissions  to  capture  armed  vessels  and  tranajwrta  in  the 
Britisb  iHM-i-ioc,  and  rccoramendod  tlie  creation  of  prize  courtu  in 
each  colony,  resomng  a  right  of  appeal  to  Congreaa.'  They 
adopted  niles  for  tlie  regulation  of  the  nary  and  for  the  divi»ioo 
of  prizes  and  prize  money.^  They  denounced  aa  enemies  all  who 
should  obstruct  or  discourage  the  circulation  of  bilU  ul  credit. 
They  authorized  further  emiasions  of  bills  of  credit,  and  created 
two  military  dc|»trtmeQta  for  the  Middle  and  Southern  colonics. 
Thvy  authorized  general  rcprisala  and  th«  equipment  of  private 
armi-d  veiuKU  uf^iosl  British  vcHaels  and  property.*  Tbcy  or* 
gauized  a  gum-ral  treasury  department.  They  autborized  the 
Qxportstiun  and  importation  of  all  goods  to  and  from  foreign 
countrifM,  nut  Hubject  to  Great  Britain,  with  certain  exceptions, 
and  prolitbitt^id  the  importation  of  slaves  and  declared  a  forfeiture 
of  all  prohibited  goods.*  They  recommended  to  the  respective 
auemblies  and  conventions  of  the  colooles,  whr^re  no  goremment 
mflScient  to  the  exigencies  had  been  eetabhshed,  to  adopt  auch 
government  as  in  the  opinion  of  the  representatives  should  best 
conduce  to  the  happiness  and  safety  of  their  constituents  in  par* 
ticular,  and  America  in  general,  and  adopted  a  preamble  which 
stated  "that  the  exercine  of  every  kind  of  authority  under  the 
crown  of  Great  Britain  should  bo  totally  Auppressed. "  * 

§  24>6.  Thofle  memmreR,  all  of  which  progresaively  pointed  to 
a  separation  from  the  mother  country,  and  evinced  a  determina- 
tion to  maintain,  at  every  hazard,  the  libertien  of  the  colonies, 
were  soon  followed  by  more  deciaivo  steps.  On  the  7th  of  Jane, 
1T76,  certain  resolutions  respecting  independency  were  moved, 
whicli  were  referred  to  a  committee  of  the  whole.  On  the  10th 
of  Jnnc  it  wa«  resolved  that  a  committee  bo  appointed  to  prepare 
a  declaration  "tliat  these  united  colonics  are,  and  of  rif^t  ought 
to  be,  free  and  indeix^ndent  States ;  that  they  are  absolved  from 
all  allegiance  to  the  British  crown;  and  that  all  political  oou- 

I  JouniKla  of  CoDgTMi  of  i;TS,  pp.  311.  SSS.  STS. 

•  JodnubarOongnMof  ITTA.  pfk  3U,  MO,  Ac 

•  Joonul*  at  CongKM  tA  1TT8,  p.  19. 
1  JmuuIi  of  CSonKTHi  of  17TS,  fip.  10«,  107.  Ill,  119. 

•  JMinali«f  OoogMHOf  17T«,  pi^  123,113. 

■  i«uMi>«f  Ooagnwor  ine,  ff.  i««,  it«. 


CD.  L] 


HISTOBT  OP  TUK  BETOLtmOit. 


149 


nectioa  between  them  ati  j  the  state  of  Great  Britain  is,  and  ought 
to  bo,  (liBSoIvcd. " '  On  the  11th  of  Juno  a  committee  wsg  ap^ 
pointed  to  profmre  and  digest  the  form  of  a  confederation  to  be 
entered  into  between  the  colonio«,  and  also  a  committee  to  pre- 
purc  a  plan  erf  treaties  to  be  proposed  to  forei^  powers.*  On  the 
28(h  of  June  the  committco  appointed  to  prepare  a  declaration 
of  independence  brought  in  a  draft  On  the  2d  of  July  CongrcBS 
adopted  the  resolution  for  indepondpnce;  and  on  the  4th  of  July 
they  adopted  the  Declaration  of  Indrpendeace,  and  thereby  8oI- 
emnly  published  and  declared  *'That  these  united  colonies  are, 
find  of  right  ought  to  be,  free  and  iudeficndcnt  States ;  thnt  they 
are  absolved  from  all  allegian**^  to  the  Briti.'th  crown  ;  ant)  that 
all  political  connection  between  them  and  the  state  of  Oreat  Brit- 
ain ia,  and  ought  to  be,  totally  diiuiolved;  and  that  as  free  and 
independent  States  they  have  full  power  to  levy  war,  com-lude 
peace,  contract  alliancea,  establish  commerce,  and  to  do  all  other 
acta  and  thingn  which  independent  States  may  of  right  do. " 

J  206.  These  minute  dctailn  have  been  given,  not  merely  be- 
cause they  present  an  historical  riew  of  the  actual  and  slow  prog- 
.  tnwardii  indepenilcnee,  but  Iwcauiie  they  give  rise  to  several 
^Tery  important  considerations  respecting  the  political  rights  and 
sovereignty  of  the  sovoral  colonies,  and  of  the  union  which  was 
thus  spontaneously  formed  by  the  i)eoplc  of  the  united  colonies. 
y  \  207.  In  the  first  p1soo,<antec4.'dcnt  to  the  Declaration  of  Inde- 
pendence none  of  the  colonics  were,  or  pretended  to  be,  sovereign 
states^  in  the  Honiie  in  which  the  term  **  Bovcrclgn  "  is  sometimes 
applied  to  stutos.'  The  tenu  "sovereign  "  or  "sovereignty  "  is 
used  in  different  senses,  which  often  lends  to  a  confiision  of 
ideas,  and  sometimes  to  very  mischievous  and  unfounded  00D> 
elaiona.  By  "sovereignty"  in  its  laig:eat  senae  is  meant  su- 
preme, absolute,  uncontrollable  |)owcr,  the  j\t*  aunnni  imptrO,* 
the  alMolnte  right  to  govern.  A  state  or  nation  is  a  body  pol-  i 
itic,  or  society  of  men,  united  ("in-lhtT  for  the  purpose  of  promot-  ' 
ing  their  mutual  safety  and  advantage  by  their  combined  Strength.' 
By  the  very  act  of  civil  and  political  association,  each  citizen 


<  Joonak  of  C<nigTM*  of  177*,  pp.  MS.  2IM. 
>  Jovnuli  or  Oomgnm  of  1776.  |<.  107. 

•  S  Dan.  no,  IMF  lUiir,  J. ;  S  l>ukti  KMif.  An>.  I  S.  ^  ICi,  1 1.  p.  ii;|  S,  p.  IS. 

•  t  Bl.  Gcmm.  tfl  i  3  D>U.  «71,  pn  Jaj,  C.  i. 

•  T*tul,  a  1,  ch.  1.  I  1  ;  S  D>U.  4U,  pw  lAltora,  3. 


150 


BISTORT  OP  THR  RBVOLDTION. 


[book  II. 


subjectH  himnelf  to  tlie  authority  of  the  vhole;  and  the  author- 
ity of  all  orer  each  member  eBSontially  bvlougs  to  the  bod;  pol- 
itic* A  Btate  which  pueBesses  thia  sbttolute  power,  without  any 
dependence  u])on  any  foreign  power  or  statv,  is  Ju  the  largest 
somie  a  aovereign  atate.'  Aud  it  ia  wholly  iiomatvrial  what  is 
the  form  <A  the  f(ovemmcnt,  or  by  whose  hands  this  absolute  au- 
thority is  exercised.  It  may  be  exercised  by  tlio  people  at  large, 
aa  in  a  pure  democracy ;  or  by  a  select  few,  as  in  an  abaqluto 
aristoeracy;  or  by  a  eingte  person,  as  in  au  absolute  nionarehy.* 
But  "  survrei^nty  "  is  often  uacd  in  a  far  more  limited  sense  than 
tliat  of  which  we  have  spoken,  to  dcsi^iatc  such  political  powers 
as  in  the  actual  urKanizatiou  of  the  particular  state  or  nation  are 
to  be  cxelusively  exercised  by  ocrtain  public  functionaries,  with- 
out the  control  of  any  aupcrior  authority.  It  is  in  this  aense 
that  Blackstoiie  employs  it,  when  he  says  that  it  is  of  "  the  very 
enco  of  a  law  that  it  is'  made  by  the  supreme  power.  Sorer^ 
Ignly  and  legislature  are,  indeed,  convertible  terma;  one  cannot 
suWiat  without  the  other."*  Now,  in  every  limited  governmeat 
the  power  of  legislation  is,  or  at  least  may  bo,  limited  at  the  will 
of  the  nation,  and  tlierefore  the  legislature  is  not  in  an  absolute 
aenfie  xovereign.  It  is  in  tho  same  fionac  that  Blackstone  says, 
**the  law  ascribes  to  the  king  of  England  the  attribute  of  aorer^ 
eignty  or  prc-eminetux-,"'  because,  in  respect  to  the  powers  con- 
fided to  him,  he  is  dependent  on  no  man,  accountable  to  no  m&u, 
and  subjected  to  no  superior  jurisdiction.  Yet  the  king  of  Eng- 
land cannot  make  a  law ;  and  his  acts,  beyond  tho  powers  assigned 
to  him  by  the  Constitution,  are  utterly  void. 

§  208.  In  like  manner  tho  word  ** state"  is  used  in  rnnoua 
scnsra.  In  its  most  enlarged  sense  it  means  the  people  compos- 
ing a  particular  nation  or  community.  In  this  sense  the*  state 
means  tlie  whole  po<ople,  united  into  one  body  politic;  and  the 
state  and  the  people  of  the  state  are  equivalent  expressions.* 


'  Viitid.  a  I,  ch.  i,§i 

*  9  rwi.  (M,  U7.  ptr  Wll«»,  J. 

*  \Mf\,  B.  1.  cb.  1.  M  11 

*  1  BL  Comin.  M.  Ste  «Iim  1  TwkM^i  Bbck.  Conun.  App.  noto  A.,  •  oowamtay 
on  tbi*  ckiuc  of  the  •nlhor'i  text. 

*  1  Bl.  Conun.  SIL 

*  PenMl«w  tr.  Dmhc,  S  XHX\.  R.  S3,  »t.  [h  Iredell.  J. ;  ChUutoi  •.  Oasf^  S 
Dill.  US,  pfT  Wllwn.  3.;  S  WlUon't  Lmt  IWg  Dmu'i  Appi.  f  t^  ^  OS.  Bto  JH. 
liebar'i  I'oUiiod  RtUo^  B.  %  «k.  4,  tk  )«. 


CO.  I.] 


HI8TDB7  OP  THE  BBVOLUnOK. 


161 


Mr.  Justice  Wilnon,  iu  hU  Law  LecturcB,  usca  the  word  "state" 
in  its  l>rondc«t  weam.  "In  free  states,"  saya  he,  "the  people 
form  an  artificinl  person,  or  body  politic,  tho  lii^est  and  noblest 
that  can  l>c  known.  They  form  that  mural  person,  which  in  one 
of  my  fonner  lectures'  I  desenbed  as  a  complete  body  of  {reC) 
natural  persons,  united  to)^-thor  for  tlivir  common  benefit;  as 
having  an  understanding  and  a  will ;  as  deliberating,  and  resolv- 
ing, and  acting;  as  possessed  of  interests  which  it  ought  to  man- 
age ;  as  enjoying  rigtits  which  it  ought  to  maintain ;  and  as  lying 
under  obligations  which  it  ouglit  to  peKonn,  To  this  moral 
person  we  assign,  by  way  o£  eminence,  tJio  dignified  ap))ellHtion 
of  STATE."*  But  there  is  a  more  limited  aenso  in  which  tlie  word 
ia  often  used,  wliore  it  expresses  merely  the  poaitire  or  actual 
organixation  of  the  legislative,  executive,  or  jadicial  powers.* 
llius,  the  actual  government  of  a  state  is  frequently  designated 
by  the  name  of  the  state.  We  say,  the  stato  has  power  to  do  this 
or  that;  the  state  has  pSMcd  a  law,  or  prohibited  an  act^  mean- 
ing no  more  than  that  tho  proper  functionaries,  organized  for  that 
purpose,  have  power  to  do  tho  act,  or  have  passed  the  law,  or 
prohibited  the  particular  action.  Tho  sovereignty  of  a  nation  or 
state,  considered  with  reference  to  its  association,  as  a  body  pol- 
itic, may  be  absolute  and  unconlrollable  in  all  respects,  except 
the  limitations  which  it  chooses  to  impose  upon  itself.*  But  tlio 
sovereignty  of  the  government  orgauJKcd  within  the  state  may  be 
of  a  very  limited  nature.  It  may  extend  to  tew  or  to  many  ob- 
jects. It  may  be  unlimited  as  to  some,  it  may  bo  restrained  as 
to  others.  To  tho  extent  of  the  power  given,  the  government 
may  be  sovereign,  and  its  acts  may  be  deemed  the  sovereign  acts 
of  the  state.  Nay,  the  state,  by  which  we  mean  the  people  com- 
posing the  state.,  may  divide  its  sovereign  powers  amtmg  various 
fuuetionariea,  and  each  in  the  limited  sense  would  be  sovereign 

>  I  WHbim'i  Lett.  SM,  SOU. 

•  S  Wllaw'*  l.«eL  ISO,  121. 

■  Mr.  UaJiina,  hi  U»«l*bant«  rapoH  In  iIm  Tli][tnU  Ugtilatnn  ja  JkiiuT;r,  1900, 
*dT«rti M  tbr  diffemt  HMCB in  wlikl)  Um  vonl  "ttu*"  UdmJ.  Ho ■■);•,  "It  win- 
4mi1  trap.  Ui«l  the  term  '  «UUa '  »  aometiinei  oanl  bi  ■  vagM  mum,  tai  loiMtHOM 
hi  diffeicBt  vnat^  wMKitl^  1*  tbc  nililBct  to  wbieh  it  u  apfilicd.  Ilia  it  tauatbam 
■HMU  die  Kparal*  MctloM  of  iMftloi;  a(cat4n]  b;  the  politLeal  aoekUm  wiUiiti  mmIi; 
•Mni«lm*«  tti*  jttrtiRiiliw  fnmuMnb  wtablbhwl  hy  thoM  M«l«tiMj  Mraatlma  IhoM 
MciMir*.  M  nij^niiad  late  tb«M  putlentv  ptntntimit*:  akd  tntljr.  it  ni«aM  UM 
^Mpb  oampoaiag  thoM  |«litKal  ndrtiM,  in  llinr  Ughmt  nvmign  tapaoit;." 

*  %  Daa  4SI,  InMI.  J.;  Id.  435,  US,  p>r  WAm^  J.  • 


X6S 


BIGTO&T  OF  TUB  BBVOLDTIOK. 


[eOOE  IL 


in  reapect  to  the  powers  conlided  to  esdi,  aod  dependent  in  all 
other  cases. '  Strictly  speaking,  in  our  ropublican  torna  of  gov- 
ernment the  absolute  surGreigntj'  of  the  Qatiun  in  in  thu  pGopl« 
of  the  nation ;  and  the  residuary  suveroitni^'  ^^f  i^ch  Statu,  not 
granted  to  any  of  it«  publie  functionaries,  is  in  tJie  people  of  tlio 

»te.« 

§  209.  There  is  another  mode  iu  which  wo  speak  of  a  state  as 
soveroign,  and  that  is  in  reference  to  foreign  states.  Whatever 
ma;  bo  the  internal  orgunizatiou  of  the  government  of  any  stat«y 
^if  it  haa  the  sole  power  of  governing  itself  and  is  not  dependent 
Ipon  any  foreijrn  state,  it  is  called  a  aoetreiffn  stale;  that  in,  it  is 
a  state  having  the  same  rights,  privileges,  and  powem  aa  other 
■dependent  states.  It  is  in  tliis  sense  that  the  term  ia  generally 
in  treatises  and  discussions  on  the  law  of  nations.  A  full 
consideration  of  this  subject  will  more  properly  find  place  in 
some  future  page.* 

§  210.  Now  it  is  apparent  that  none  of  the  colonies  before  the 
Revolution  were,  in  the  moat  large  and  general  senae,  indepen- 
dent or  BuvcreigD  communitiea.  They  were  all  orignally  settled 
Bsder,  and  subjected  to,  the  British  crown.*    Their  powers  and 

>  S  D*I1.  ».  fr  lr«d«U,  J.;  S  DilL  (SS,  IS7.  p«r  Wlbon.  J. 

■  3  IHIL  471,  171,  |«r  Jay,  C.  J. 

Mt.  J.  Q.  Ailim*,  in  hu  oratioa  mi  Um  4lh  of  Julf,  IStl,  pabUibed  afU*  tbe 
)irR|itnU(in  of  tkoc  OovuMatuio^  OMa  tb«  bOowi^g  lufiufe :  "  [t  U  not  tnw  that 
lh(T«  iiiwt  n*tda  la  all  KDnnmMti  aa  abaeliit*,  naeMtnUahU,  (fnabtl  bliv  and  ilMfMfe 
ponr :  nor  U  ndi  p««ar  In  an;  maiiMV  wawnUl  to  MvcnigD^.  UnesottvUabie 
power  cxitu  in  no  garWMBwnt  oa  aartti.  Hm  atanuat  <lcipati«na  in  anf  nfnoa  and 
Id  tvtrj  a{(e  of  lbs  itwild  an  and  kir*  bean  nndcr  faipttnal  eontnL  (Talknllad  |>o««r 
btkogl  not  to  man  ;  aad  rotten  oil!  be  lbs  fMradatiiui  at  ntaj  gmtmcMtA  baalaji 
ap»Mtk  •  niBJilna  tor  Itt  tujiport.  LmoI  of  allcan  hba  pndkalrd  of  agoTimuHat 
infoani^  In  U  laandod  upon  aa  orijjnal  oeaD|«et.  The  fnUmn  «f  an  ak•«lgll^  bn- 
riitlhla  dMiiotic  ponrtv,  oriating  in  «rnf  gnratMnant  MMnowte^  m  JnewnfliMa  witk 
till  ftnt  priaciplM  of  aatunl  i^gbt." 

■  Dr.  Ratb.  in  a  iioUtkal  ceumaafoalloB,  ITBS,  mm  the  term  *■  wrmfinQ*  la 
aaoditr  and  aatwhat  mon  tiailtad  mam.  H*  okjt,  "Tba  peoph  ot  Amariea  bar* 
■tialakfa  tlia  ■Naatag  of  tbe  •onl  'aorceeigntjr.'  Henoe  Mcb  Blate  prolneda  to  be 
mmnifn.  In  K«ro|w  ll  ia  apf UmI  to  tbcae  etatea  wbteh  itmm  tbe  pxew  of  makia£ 
wt  and  peao^  of  brrninc  tnMi«  and  tbe  lika.  li  tbla  pwwt  bulot^p  «ad;  ta  Oen- 
pe^  tfaey  an  the  only  avvsRiiga  povar  ia  tb>  tTnii«l  SuW  Wt  oonnil  a  flHlW 
■Jatafce  in  oar  Ueaa  of  tbo  wocil  '  imtepM^aot.'  Ko  ladlvidul  States  a  ■oah,  ba 
aa;  claim  to  IndefiuidMC*.  8be  U  indifiMdml  only  In  a  nnion  with  bar  titter  Stattn 
ia  On^Tat*."  1  Amar.  Uiuaaia.  8,  ».  Dr.  BirUa.  on  tbe  otba  band,  in  a  tinUir 
aaaj,  txpUna  tba  oparatkai  ef  lb*  aTtiaoi  af  tba  «onE»Aantkti  ia  tba  nanatr  wbJcb 
hM  btcn  giT«a  in  lb*  la^L     1  Aaar.  Maeiwi^  13,  li. 

'  SDaa  ITl,  paJar.CJ. 


CB.  I.] 


HIKTORY  OF  THE  BETOLCTIOX. 


153 


authorities  were  derived  from  and  limited  by  their  rcspcctiro 
ohArtera.  All  or  nearly  all  of  these  charters  eontrollbd  their 
legiatation  liy  prohibiting  them  from  making  laws  repognaDt  or 
coatrary  to  thorn;  of  England.  I'he  crown,  in  many  of  theoif 
poftaeased  a  negative  upon  their  legislation,  as  well  as  the  cxcla- 
sive  appointment  of  their  Biii»erior  officers;  and  a  riglit  of  revi- 
sion, by  way  of  apfkcal,  of  the  judgments  of  their  courts.'  In 
their  most  solemn  declarations  of  rights,  they  admitted  them- 
seWcs  bound,  lu  British  subjects,  to  alk'giauce  to  the  British 
crowD :  and  as  sucli,  they  claimeid  to  be  entitled  to  all  the  rights, 
liberties,  and  immunities  of  frccborn  British  subjects.  They 
denied  all  power  of  taxation,  except  by  their  oum  colonial  legis- 
latures ;  but  at  the  same  time  they  udmitt^id  tlivmsclves  buond  by 
acts  of  the  British  Parliament  for  the  ragulutioo  of  external  com- 
merce, so  as  to  secure  the  commercial  advantages  of  the  whole 
empire  to  the  mother  oountr}',  and  the  commercial  booefits  of  its 
respective  members.*  So  far  as  respects  foreign  stut^thc  colo- 
nies were  not,  in  the  sense  of  the  laws  of  Ration4vBovcreign 
states,  but  mere  dependencies  of  Great  Britain,  They  could 
make  no  treaty,  declare  no  war,  send  no  ambassadors,  regulate 
no  tnteroourse  or  coismcree,  nor  in  any  other  shape  act,  as  ■o^'er- 
oigna,  in  the  negotiations  usual  between  independent  states.  In 
rcspoct  to  each  other,  tbey  stood  in  the  common  relation  of  Brit- 
ish subjects;  the  Ic^slatiou  of  neither  could  be  controlled  by  any 
other ;  but  there  was  a  common  subjection  to  the  British  crown.* 
If  in  any  8en»e  they  might  claim  the  attributes  of  sovereignty, 
it  was  only  in  that  sul)ordinate  sense  to  which  we  have  alluded 
•S  exercising  within  a  limited  extent  certain  usual  powers  of  sov> 
ereignty.  They  diil  not  even  affect  to  claim  a  local  allegiance.* 
%  211.  In  the  next  place,  the  colonics  did  not  severally  act  for 
themselves,  and  proclaim  their  own  independcnoo.  It  is  true 
that  some  of  the  States  had  previously  formed  incipient  govem- 
aents  for  themselves;  but  it  was  done  in  compliance  with  the 
reoommendatinns  of  Congress.'    Virginia,  on  tho  29th  of  June, 

>  8»  U»nUr>  Hbt.  of  ColonWt.  p.  4$S;  icnnuii*  at  C«ii«nM.  1771,  ^  »■ 

*  Jaatiai  oT  Caagntm.   ITT*,  pp.  K.  U,  8S,  »:  ins,  pp.   1(3.   156;  ManhaU'a 
HM.  or  (>lanl«.  A,  14,  pp.  412.  4R3. 

*  1  Ch«ltnimt'>  AkmU,  SSS,  «S7:  2  Dall.  470.  par  Jftjr.  C.  ]. 

*  Jtmrad  «l  Oimgnm.  1776,  p.  tSS;  S  Bul  Col.  591;  M«nJi.  Cotmb*,  A'pp,  Ko. 

*  Joaraal  gtOragraii,  17;s,  pp.  Its.  331, 13S,  STS;  1  Pitk.  Uirt.  351,  iU;  Uanh. 


1S4 


DISTORT  OF  THE   BETOLtmOM. 


[BOOK  n. 


1776,  hy  a  convention  of  dolegatcs,  deelnnMl  "  tlto  goronuiumt  of 
this  oountrj,  m  formerly  exercised  under  the  crown  of  Great 
Britain,  totally  dissolved ; "  and  iirorceded  to  form  a  nbw  coiutj- 
tution  uf  i^vernnient.     New  Mampshirc  also  formed  a  govern* 
ment  in  December,  1775,  which  was  manifestly  intended  to  be 
temporary,  "  during  (an  they  said)  the  unhapj))'  and  unnatural  con- 
test with  Oroat  Britain."'     New  Jersey,  too,  (.■stabliahcd  a  frame 
of  government  on  the  Sd  of  July,  1776;  but  it  was  expressly 
declared  that  it  should  bo  void  upon  a  roconciticition  with  Great 
Britain.'    And  South  Carolina,  in  Man-h,  1776,  adopted  a  con- 
stitntion  of  government;  but  this  was,  in  lilce  nuinner,    "es- 
tablished  until  an  accommodation  between  Great   Britain   and 
Amel-ica  could  bo  obtained."^     But  tlio  doelarutiun  of  iudepcnd- 
ence  ot  all  the  colonics  was  the  united  act  of  all.    It  was  "a  dec- 
laration by  the  representatives  of  the  United  States  of  America 
in  Congress  assembled;"    "by  the  delegates  api>ointcd  by  the 
good  perJk  of  tlie  colonies,"  as  in  a  prior  doclaratiun  of  rif^tts 
they  wer*tallcd,*    It  was  not  an  act  done  by  the  State  Rovom- 
ments  then  organized,  nor  by  pcn»onfl  chosen  by  them.     It  was 
emphatically  the  act  of  tlw  iifh.ole  people  of  the  united  colonica, 
by  the  inatmmentality  of  their  represoatatives,  chosen  for  that 
among  other  purposes.*    It  was  not  an  act  competent  to  the  State 
governments,  or  any  of  tliom,  us  organized  undur  their  charters, 
to  adopt     Those  charters  neither  Gontemplat«d  the  cose  nor  pro- 
vided fur  it.     It  wus  an  act  of  original,  inherent  BovcrciKnty  by 
the  people  themselves,  resulting  imia  their  right  to  change  the 
form  of  government,  and  to  institute  a  new  one,  whenever  nuces- 
MT}'  for  their  safety  and  hai)pine88.     So  tfao  Declaration  of  Inde- 
pendence treats  it.     No  State  bod  presumed  of  iloolf  to  fonn  a 
new  government,  or  to  provide  for  the  exigencies  of  the  times, 
without  consulting  Congross  on  the  subject;  and  when  anyaotcd, 
it  was  in  pursnance  of  the  recommendation  of  Congress.     It  was, 
therefore,  the  achiorement  of  the  whole  for  the  benefit  of  the  who)^ 
The  people  of  the  united  coloniee  made  the  united  colonies  free 

C«laa.  <^  li,  l-p.  441,  447  ;  B  Honing,  Stnt  lit;  IIS, ;  ft  Du*'*  AbriJg.  App.  |  fi, 
p.l«. 

>  IBelk.  X.  n*int>.  ch.  3S,  pp.  SIM.  MB,  813;  1  PtU.  BM.  »I,  SS8. 

•  8Uk«'i  Hilt.  Cokn.  SI,  TS. 

•  eiofa^a  Hiot.  Ookm.  IM;  1  Pia.  KUl  SGO. 

•  Jonnul,  1770,  p.  UI;  Joamil.  17>4.  pp.  27.  4fi. 

■  t  IklL  470,  4T),  rw  1*J,  a  J.;  V  D*M-«  Abriilc.  App.  (|  11,  IS.  pp.  SI,  14. 


en.  t.] 


BIStOSr  OP  tBB  REVOUmOM. 


16& 


and  iti<lL-|M.-nd(.-nt  Stiit4.-fl,  aiid  absolved  thorn  from  all  allegianoe  to 
tb«  British  cruwiu  Tito  Dcclunitiun  of  Independence  bu  ac- 
cordingly always  b«cn  treated  as  au  act  of  paramount  and  sover- 
eign uuUiority,  complete  aod  perfect  f^er  «e,  and  tpto  facto  vorkingj 
an  entire  dissoliiiioa  of  all  political  conncotiou  with,  and  alio-' 
giaacc  to,  Oreat  Rritain.  And  this,  not  merely  as  a  practii^al 
fact,  iMit  in  a  legal  and  constitutional  view  of  the  matter  by 
eourta  of  jnstice.* 

§  212.  In  the  debales  in  the  South  Carolina  legislature,  In 
January,  17KK,  respecting  the  propriety  of  calling  a  convention 
of  the  people  to  ratify  or  reject  the  Constitution,  a  distinguislied 
statesman'  used  the  following  language:  "This  admirable  mani- 
festo (that  is,  the  Declaration  of  Independence)  sufficiently  re* 
futea  (he  doctrine  of  the  individual  twvcrcignty  and  indcpendenoa 
of  the  several  States.,  In  that  dt-oliu-utiuu  the  several  Statca  are' 
not  eren  enumerated ;  but,  aftor  reciting  in  nervous  language  and 
with  convincing  arfriuneuls  our  right  to  independence,  and  tlie 
tyranny  wbieli  eouijielk-d  us  to  assert  it,  the  dc<claration  is  made 
in  the  following  words:  'We,  therefore,  the  reproBcntatirca  of 
the  United  States,  Ac,  do,  in  the  uamt-,  &c.,  of  tli<!  pxid  ))eople 
oi  these  colonies,  solemnly  publitth,  &<:.,  that  these  united  colo- 
nies are,  and  of  right  ought  to  bo,  free  and  independent  States.* 
Tbo  Bcparato  ln<Iir]>i;iideac«  and  individual  s<^vereigiity  of  the 
several  States  were  never  thought  of  by  the  enlightened  band  of 
patriots  who  framed  this  declaration.  The  several  States  are 
not  even  mentioned  by  name  in  any  part,  as  if  it  was  int^-nded  to 
impreiw  tlie  maxim  on  America  that  our  freedom  and  iudcpcn- 
deooo  arose  from  our  union,  and  that  without  it  we  could  never  be 
free  or  independent  Let  us  then  consider  all  attempts  to  weaken 
tins  union,  by  maintaiuiug  tliBit  each  State  is  separately  and  in- 
dividually  independent,  as  a  species  of  political  heresy,  which 
can  never  benefit  vt,  but  may  ^ring  on  us  the  most  serious 
distresses. "  ' 


>  3  DillM  ft-  tio. 

*  Mr.  OurU*  OoUnraith  rtnckiiBr, 
'     •  IHIata  In  SoaOi  CaroUn^  178B,  printed  I?  1.  E.  Mnkr,  CluflMlM,  1S»,  ; 
43,  U.     Mr.  AJuiu,  itt  U*  oration  on  Uia  <th  «f  Jaly,  ISSI,  «klch  U  rdn^i  (or  ll 
vlit*«  oT  MMtUutkAwl  pfineiplM,  bukti  upon  tlu  mm  doctriM  u  MufaknUt  I 
Thevgh  tt  lui  b«n  |wblbhed  tlnot  th«  MigistlYMfantton  tit  tbta*  Uetaia^  I 
knfl  njnolf  «if  an  opfwrtaBitr  to  ua*  hii  MtbCDit;  in  «otrolNnilM«i  of  the  mm*  < 
"The  anion  nf  the  odonke  fatd  pcrcedod  thi*  dechntko  [«f  lnikpen4««o*l  and 


156 


msrOBT  OP  TUB  RBVOUmOM. 


[book  11. 


'! 


§  213.  In  the  next  place,  we  have  iwfii  that  thi?  power  to  do 
this  &t-t  n-RH  uut  derived  from  the  Statu  guven)in<>ut»,  nor  was  it 
done  gcncrnlly  with  their  co-operutioi^  The  queiition  then  nat- 
urally pifflcnt*  it8«lf,  if  it  is  to  \>«  coM«idered  iw  a  national  act, 
In  what  manner  did  the  colonie«  become  a  nation,  and  in  what 
manner  did  Congrcso  become  possessed  of  this  hatiooal  power  T 
mie  true  answer  mitat  he-,  that  as  8t>on  an  CongrcBH  assumod  pow- 
«rs  and  pasned  nteaaurea  which  were  in  their  Qatura  national,  to ' 
that  extent  the  people,  from  whose  acquiescence  and  <!on8«nt  the>' 
took  effect,  must  bo  considered  as  sgreoinK  to  form  a  nation.'  i 
The  Congress  of  1774,  looking  at  the  general  tcnns  of  tlic  cora- 
miestons  under  which  the  delegates  wore  appointed,  seem  to  have 
posHcHsed  (he  power  of  concerting  such  measures  aa  they,deemed 
best  to  redress  the  grievances  and  preserve  the  rights  and  liber- 
ties of  all  the  eulunie*.  Their  duties  seem  to  liave  been  princi- 
pally of  an  advisory  nature;  but  the  exigencies  of  tJie  times  led 
them  rather  to  fuUow  out  the  witthes  and  objects  of  their  constit- 
uents, Uian  scrupulously  to  cxaiuiue  the  words  in  which  their  au- 
thority wag  comraunicated.'  The  CongnsB  of  1775  and  1776  were 
clotbed  with  more  ample  powers,  and  the  language  of  their  com- 
missions gfiierally  was  suiliciently  broad  to  embrace  the  right  to 
pass  measaresofa  national  character  and  obligation.  The  caution 
necessary  at  that  period  nf  the  Revolutionary  atniggle  rendernl 
that  language  more  guarded  tlian  the  objects  really  in  liew  would 
justify ;  but  it  waa  foreseen  that  the  spirit  of  the  people  would 
eagerly  second  every  mpasiirn  adopted  to  further  a  general  union 
and  reaiiitance  against  the  British  claims.     The  Congress  of  1775 

tlw  conunuiotmtat  of  the  <nr.  Tbf  dMUntwn  *m  joint,  that  lh<  n>il«d  coteole* 
w«n  tiM  and  indtpendMit  Stataa.  tnt  aot  tli*t  aav  one  of  tfaem  ma  a  free  and  in^ 
pandant  Biota,  upanta  trom  Uw  rart."  "Tbe  Dadaratioa  dI  IndfpenihAM  ava  ■ 
McUl  ooiapact,  bjr  wUeb  tbc  >bolD  paopla  cowdaaUd  with  taA  tttiMi,  «nd  «mIi 
dlimi  <ri(b  llie  wbola  pMipliv  that  lh«  ni^tad  mImiUi  wm,  and  of  right  ou|[tit  t»  ha, 
trm  and  bdapmidtBl  alatti.  To  thla  oompari.  vnlaa  «rw  ra  vital  m  fltwdom  nr  liulf- 
pcMleno*.  Tb»  Dfxlamfam  oT  iadqwAdeno*  anaannnd  th«  ■•tctuoc  ef  U>*  UiiftMH 
nnital  «oloniCB  from  tha  raat  of  tht  Briliah  Biapii*.  aad  tbe  axutenoa  dT  Ihrir  rMfi^ 
(mai  that  dajr  forth,  aa  an  isdeptndaiit  oatton.  Th«  p«>f4«  of  all  the  edoniAk  apMlc- 
ing  by  Ibrir  tvpmacolatirB*,  oonititated  ihoMMdna  <»*  moral  pHsM  hcfci*  the  boa 
ef  Uwlr  (illaw-nan.  Tha  DMlantion  of  ImWpowknoa  waa  ML  •  dMdarathm  el 
IHwrty  modjr  aeqvirwd,  nor  Ma  it  ■  fono  «l  govmmimt.  Tha  r*o)ilK  of  th*  ooImIm 
wm  alrmdr  In*,  aad  Ihaii  fomiii  uf  j^onraiiMBt  won  Mriou*.  Tlicjr  wara  all  crioaiw 
of  •  MoninliT.     Tha  king  of  Urmt  Hritain  w«b  tMr  <aiaiiiaa  aovEmgn." 

t  s  iitii.  It.  SO.  81,  WO,  9\,  loe,  no.  ui,  ur. 

*  8  Hail.  B.  »i. 


CB.  I.] 


HlflTORY  OF  TBE  REVOLIHTOH. 


157 


accordingly  aasumed  at  cHioe,  aa  we  have  seen,  the  exeKJae  of 
some  of  tbo  highest  functiona  of  sorereignty.  They  took  meas- 
ured for  Dationul  (Icfcawe  and  rcaistancc ;  they  followed  Dp  the 
prohibitions  upon  trado  aud  iiit^rcourse  with  Groat  Britain;  th«^y 
raised  a  Dstional  army  and  nary,  and  authorized  limited  naticntal 
hostiltlitt)  against  Great  Brituiii;  th«y  raised  mon<>y,  emitted 
hilla  of  credit,  and  euutracted  d(.-bt«  upon  national  account;  they 
eatablisbed  a  national  post'Oflice;  andiinally  they  autliorized  cap- 
tures and  condemnation  of  priKes  in  prize  courts,  vith  a  reserve 
of  appellate  juriftdiction  to  IhemaelTCS. 

$  214.  The  same  body,  in  1770,  took  bolder  steps,  and  exerted 
powers  which  could  in  no  other  manner  be  justified  or  accounted 
for,  than  upon  the  supposition  that  a  national  .union  for  national 
pur]M»es  already  existed,  and  that  the  Congrcas  was  inrested 
with  sovereign  power  over  all  the  colonics  for  the  purpose  of 
preserving  the  ooiomon  riirhta  and  liberties  of  alL  They  ac- 
cordingly authorized  general  hostilities  against  the  persona  and 
property  of  British  subjects;  tfacy  opened  an  cxtensi\-u  oonunorco 
with  fori'ign  countries,  regulating  the  whole  subject  of  imports 
and  exports;  lliuy  uiirborixcd  the  formation  of  new  governmL-nts 
in  the  colonies;  and  finally  they  excrciiied  the  sovereign  preroga- 
tive of  dissolving  the  allegiance  of  all  colonics  to  the  British 
crown.  The  validity  of  these  acts  was  never  doubted  or  denied  by 
the  people.  On  the  contrary,  they  bocomc  the  foundation  upon 
which  the  superstructure  of  the  liberties  and  independence  of  the 
United  States  has  been  erected.  Whatever,  tlien,  may  bo  the 
theories  of  ingenious  men  on  the  subject,  it  is  historically  true  I 
that  before  thu  Declaration  of  independence  the»e  colonies  were  || 
not,  in  any  absolute  sense,  sovereign  states;  tliat  that  event  did 
not  find  tliem  or  make  them  such ;  but  that  at  the  moment  of 
their  separation  they  were  under  the  dominion  of  a  superior  eon- 
trolling  national  government  whoae  powera  were  vested  in  and 
exercised  by  the  general  Congress  with  the  consent  of  the  people 
of  all  the  States.  < 

}  215.    From  the  moment  of  the  Declaratioa  of  Independence, 


■  Tbla  wbols  Mbfwt  b  wy  saply  dlwnuMd  hj  Ur.  Dum  to  bii  Appcadb  to  tht 
Blatb  rolinne  at  kl«  AMdgnmt  of  Ih*  l^m :  tnd  muij  at  hb  viowt  edseU*  with 
thaw  (laiAl  In  Iha  Uxt.  Tha  vholn  of  Ifcal  Apfamllx  to  worthj  of  tk*  p«niad  of 
vntj  coiutitirtiaiMl  ksjor,  even  tfaon^  ho  Might  (liffrr  Ttna  toma  «4  lh«  cos. 
dniou  ti  the  Uandl  ■ntlior.    He  viQ  tb«ra  Bad  tMoh  iMtoaia^  fnm  iocammtnf 


arSTORT   OP  TUG  BKVOLDTIOK. 


[aooE  n. 


If  not  for  most  parpoaeB  at  an  antecedent  period,  the  united  colo- 
nies mnst  be  coneidored  as  beinji  a  nation  de/aeto,  havin);  a  gen- 
eral  government  over  it,  created  und  acting  by  the  general  oomwut 
of  the  people  of  all  tbe  colonies.  Tlic  powers  of  that  government 
were  not,  and  indeed  could  not  bo,  well  defined.  But  still  its 
oxcluaive  sovurui^ty,  in  many  coses,  was  firmly  CHtablished; 
and  ita  controlling  power  over  the  States  u-as  in  most,  if  not  in 
all,  national  meaaurca  universally  admitted.'  Thu  Articles  of 
CiHifederation,  of  which  wc  shall  havo  occasion  to  spcafc  more 
hereafter,  were  not  prepared  or  adopted  by  Confess  until  No- 
vombcr,  1777;'  tJicy  were  not  signed  or  ratified  by  any  of  tlie 
States  ontil  July,  1778;  and  Ibey  were  not  ratified,  so  as  to  be- 
comr;  uMiniitory  upon  all  the  States,  until  March,  1781.  In  the 
fntcrmt'dimi;  time,  Congress  continued  to  exercise  the  powers  of 
a  general  government,  whoee  acta  were  binding  on  all  the  States. 
And  thotigh  they  conBtantly  admitted  the  States  to  he  "sovereign 
and  in<le{)eii<lent  onmmunitii?A,"*yet  it  must  be  obvious  that  the 
temis  were  used  in  the  subordinate  and  limited  sense  already 
alluded  to;  for  it  was  impoHtiible  to  une  them  in  any  other  sense, 
since  a  majority  of  the  titatea  could  by  their  public  acta  in  Con* 
gress  control  and  bind  the  minority.  Among  the  exclusive  pow- 
re«  exercised  by  Oongrpas  were  the  power  to  declare  war  and 
make  peace;  to  aulhorixe  captures;  to  institute  api>ellat«  prize 
courts;  to  direct  and  control  all  national,  military,  and  naval 
operations;  to  form  alliances  and  make  tTeaties;  to  contract 
debts,  and  issue  bills  of  credit  ufion  national  account  In  respect 
to  foreign  governments,  wo  were  politically  known  as  the  United 


«vlil(ii«a  of  A  piblie  n>tat«,  whid  Iim  not  bitliNto  Ibm  prMiiitrf  la  ■  "HttitH  vr 
■cmrato  riutp*. 

Bom*  taUTMting  tien  of  this  Mtyoct  m  ■!«>  pnanted  in  PretUrst  Kmaofft 
Mnnfia  on  latmul  ImproMnnU,  on  tiw  ftli  oT  Hajr.  1833.  appirDded  to  U*  lUmagt 
TMpMti^  the  CninlMvUiul  Road.     Sn,  (■pKull)',  pMtra  S  and  9. 

When  Mr.  Ctikf  JoKJca  UanUl.  io  C^m  ti  Oihbon*  l»  WIimL  R.  187),  kdaUa 
that  tb«  But«i,  bffora  tb*  fcnnaUaa  of  thr  CoMtllDti«a,  wft*  tovmigii  sn>l  indvpra- 
iutt,  ud  wtn  connr«tnl  vtth  taob  olbcr  onlf  \>j  a  laagne,  it  ia  MuiTnl  Uirt  lie  mm 
tlw  ODni  "  (Of  R*<gu  "  in  a  very  mtriettd  mumi  Dndcr  I)m  coaUmtian  tbBr*  wcra 
n«ny  limitalion*  tapon  tbe  pomn  of  the  8tat«a. 

>  Sm  Ponhallov  V.  Domic,  3  Dall.  K.  G< ;  Wai«  r.  Hjllon.  S  thih  iW.  pn  Owm,  J. 
Sn  ll>«  l^lreiiUr  l,Mt4r  ot  Crnigma,  Uih  Srpt.,  177S ;  S  Jour.  CoDg.  311,  M,  U9. 

*  Joar,  of  CnnK.  1777.  p.  602. 

■  Sot  Utter  of  I7th  Nov.,  1777,  b;  Coapei^  wewmfding  tfct  Anidm  of  Obb* 
fedmtkia  g  Joomal  oT  1777,  pp^  £13,  SN. 


CB.  ].] 


BISTOfiY  OF  THE  SEVOLUTIOH. 


169 


States  only;  and  it  wag  in  our  national  capacil}*,  as  Buch,  that 
we  iw-nt  and  rvcciv-vd  umbaiwadors,  vntorcd  into  trvaticB  and  al- 
lianccii,  and  were  admitted  into  the  gcnorni  communis  of  na- 
tions, wbu  might  cxereiftc  the  right  of  btdUxorcnts,  and  claim  an 
equality  of  sovereign  powers  and  premgativos.' 

§  216.  In  confirmation  of  these  views,  it  may  not  be  witfaont 
use  to  refer  to  the  opinions  of  some  of  our  most  eminent  judgra, 
delivered  on  occasionK  which  required  an  exact  examination  of 
the  subject  In  Chisholm's  Executors  v.  The  State  of  Geor- 
gia,' Mr  Chief  Juntice  Jay,  who  was  equally  ditttinguished  as  a 
Bcvolutionary  atalesman  and  a  general  jurist^  expressed  him- 
self to  the  following  effect:  "The  Revolution^  or  rather  the 
Declantion  of  Independence,  found  the  people  already  nnitcd 
for  general  purposes,  and  at  the  same  time  providing  for  their 
more  domestic  concvms  by  State  conventions  and  other  tem- 
porary arrange montx.  From  the  crown  of  Great  Britain  the  sov- 
ereignty of  their  ouuntr>'  piused  to  l\its  peoplt  of  it;  and  it  was 
then  not  an  unoommou  opinion  Uiot  Uic  unappropriated  lands 
wliich  belonged  to  tJiat  crown  passed,  not  to  the  people  of  the 
colony  or  States  within  whose  limits  tliey  were  situated,  but  to 
the  wkole  peofU,  On  whatever  principle  this  opinion  rested,  it 
did  not  give  way  to  the  other;  and  tkirlrtn  tovtrtinntUi  were 
considered  as  emer^ng  from  the  principles  of  tJic  Revolution, 
combined  by  local  convenience  and  considerations.  The  people, 
ncvortlieless,  continued  to  consider  themselves,  in  a  national  point 
of  view,  as  9tu  peopU;  and  they  continued  without  interruption 
to  mana^  their  national  concerns  accordingly."  In  Pvnhaliow 
VI  Ooane,*  Mr.  Justioo  Patterson,  who  was  also  a  Revolutionary' 
stat^.'sman,  said,  speaking  of  the  period  before  tlie  ratification  of 
thf  confederation:  "The  powers  of  Congress  were  revolutionary 
In  Ihcir  Qoture,  arising  out  of  events  adequate  to  every  national 
emergency,  and  cwxlensiv**  with  the  object  to  be  attained.  Con- 
gress was  (lie  general,  supreme,  and  controlling  council  of  the 
nation,  tlie  centre  of  ^k|,  and  the  sun  of  the  political  system. 
Congress  raised  arm^^Htted  out  a  navy,  and  prescribed  rules 
for  Uif ir  gnvemmcnt,  JFc  These  high  acta  of  sovereignty 
were  submitted  to,  acquiesced  in,  and  approved  of  by  the  people 
of  America,   Ac.     The  danger  being  imminent  and  common, 


>  1  Amrr.  Hwniia,  IS;  1  K«nt,  Cowd.  1»,  IM,  IM. 

>  8  D>!L  419,  tTO.  *  8  DtIL  SL 


1«Q 


HrerORY  OP  THB   RETOLUTIOK, 


[BOOK  n. 


It  became  necesftary  for  the  people  or  colonies  to  ooalcsco  and  act 
in  concert,  in  order  to  divert  or  break  the  riolence  of  the  g«th- 
Oring  storm.  They  accordingly  grew  into  uninn,  and  fonncd  ono 
great  political  body,  of  which  Congress  was  the  directing  princi- 
ple and  soul,  &c.  The  truth  is,  that  tbe  States,  indiridu- 
ally,  were  not  knov'n  nor  rcfofinizcd  as  sovereign  by  foreign 
nations,  nor  are  they  now.  The  Stat«B  collectively  under  Con- 
fess, as  their  conncctinK  point  or  bead,  were  acknowledged  by 
foreign  powers  as  soveroi^t,  particularly  in  Ibat  acceptation  of 
^  the  term  which  is  applicable  to  all  threat  national  conoema,  and 
'  in  the  exercise  of  which  other  guvereigns  would  be  more  imme- 
diately interested."  In  Ware  v.  Hyltoo,*  Mr.  Juaticc  Chose, 
himself  also  a  Revolutionary  statesmsn,  said;  "It  haa  been  En- 
quired, what  powers  Congress  posBOSsed  from  Uie  first  meeting 
in  September,  1T74,  imtJl  the  ratification  of  the  confederation  on 
the  1st  of  March,  1781.  It  appt'ura  to  mu  that  tltc  powers  of 
Congress  during  that  wliolo  period  were  donved  from  tlie  people 
they  represented,  exprc-Hsly  ^ven  through  the  medium  kA  tbeir 
State  conventions  or  State  legislatures;  or  that  after  they  were 
exercised,  they  wore  impliedly  ratitiwl  by  tho  acqaiesconce  and 
obedience  of  the  peoplt,  kc  The  powers  of  Congreoa  originated 
from  necessity,  and  arose  out  of  it,  and  wore  only  limited  by 
events ;  or,  in  other  words,  they  were  revwlut  ionary  in  tboir  nature. 
Tiicir  extent  depended  on  the  exigencies  and  ncvessitics  of  public 
fairs.  I  entertain  this  general  idea,  tliat  the  several  States 
Itetained  all  internal  sovereignty;  and  that  CougrcAs  properly 
[poncBScd  the  rights  of  external  sovereignty.  In  deciding  on  tho 
iwers  of  Congress,  and  of  the  several  States  before  lh«  confcd- 
[«ration,  I  sec  but  one  safe  nile,  namely,  that  all  the  powers  act- 
lally  exercised  by  Congress  I>efore  that  period  were  rightfully 
terciaed  on  the  presumption,  not  to  he  controverted,  that  they 
^were  so  anthorized  by  the  pec^le  they  represented,  by  an  express 
or  implied  grant;  and  that  all  the  powers  exercised  by  the  State 
conventions  or  State  legislatures  wore|^t|  rigfatfuDy  exercised 
on  the  same  presumption  of  authorit^^^Ri  tlie  [woplc."' 

§  217.    In  respect  to  the  powers  ot^hc  Continental  Cqpgress 
exercised  before  the  adoption  of  the  Articlea  of  Confederation, 


1  S  Dan.  199, 

*  8*«  «1m  1  Kent.  CowA.  L«ct.  10,  p.  Itfli  PmliWal  MoBro*'*  lUpMlUMi  and 
,  «h  «f  Vaj.  iXt%  PPL  S,  9,  10.  11. 


CB.  I.] 


HISrOBT  OP  TDE  SETOLDTIOir. 


161 


few  questions  were  judicially  discussed  during  tho  Revolutionary 
contest:  for  men  bud  not  leisure  in  the  heat  of  war  nic«l}-  to 
scrutinize  or  wuiKli  such  subjcctit ;  intfr  arma  tiUnt  U^ga.     The 
people,  rcljiag  on  the  wisdom  and  patriotism  of  Congress,  si- 
Icullj  acquiesced  in  whatever  authority  thi-y  as8imicd.     But  soon 
after  the  organization  of  the  present  government,  tho  question 
was  most  elaborately  discussed  before  the  Supreme  Court  of  the 
Unitci)  States,  in  a  case  calling  for  an  exposition  of  the  appellate 
jurimliction  of  Congress  in  prize  causes  before  the  rntilication  of 
the  confederation. '  {a)    The  result  of  that  examination  was,  na 
the  opinions  already  cited   indicate,  that  Congreas,  before   the 
confederation,  poftseased,  by  the  consent  of  the  people  of  the 
United  States,  sovereign  and  supreme  powers  for  national  pur-l 
poses;  and  among  others  the  supreme  powers  of  po^cc^and  WilCrA 
and,  as  an  incident,  the  right  of  edtertaining  appeals'in  the  laat  J 
resort  in  prize  causes,  oven  in  opposition  to  State  legislation.  / 
And  that  the  actual  powers  exercised  bv  Congress,  in  respect  to! 
national  objects,  furnished  th^  best  (^position  of  its  constita-^ 
tional  authority,  since  they  emanated  from  tlic  representatives  as 
the  people,  and  wore  ooquieaced  in  by  tho  people. 

>  PvnlMllmr  «.  Domm.  8  Dill  SI.  80,  88.  BOi  91.  9i.  109. 110,  111.  11%  117;  JfW- 
nal)  of  Ca^ns,  Maieh,  1I7»,  Fi<-  88  to  SS;  1  Kent.  Conun.  lOS,  IW. 


'(a)  Ad  IntorMttBg  >e£««nt  of  tbtinfr^  Hr^_ 

tjorenj-trith  Pcoiuj'ImiiBonrttitJiutl-  *'1J*  .      , 

dktiod  «f  Congrcy  tn  price  cmuw,  uid  ofliy  Dotlw  hj)A»  mo  GrOrgt  "U.  mI- 

of  Uic  [«rt  tikeo  \ij  tlw  tnin'mf  kwjrer  lu,  (ip.  {>5  dtaj. 


t.S.  i,J)iia>»i  it,  watUM^  Of  f>P 
>I  iulbflhy,  will  b*  (ottoA  kot^Ub 


VOL.  I.  — 11 


162 


BISTOilT  OP  THB  COSPEDEB.ITIOK. 


[book  II. 


CHAPTEB  II. 


ORICIN  OP  THE  OOXPEDERATtON. 


§  218.  The  union,  thus  fonocd,  grew  out  of  Uic  exigencies  of 
the  times ;  and  from  its  nature  and  objects  might  be  deemed  tem- 
porary, extending  onljr  to  tlio  maintenance  of  the  common  iiljer- 
ties  and  independence  of  the  States,  and  to  tenninato  with  the 
return  nf  peace  with  Great  Britain,  and  the  accomplishment  of 
the  ends  of  the  Revolutionary  c<mto«t.  It  was  obvious  to  reflect- 
ing miudu  that  such  a  future  separation  of  the  States  into  abso- 
lute, independent  communities,  wiUi  no  mutual  tics  or  controlling 
national  Ku^'cniment,  would  be  fraught  with  the  most  imminent 
dangers  to  their  common  safety  and  peace,  and  expose  tlicm  not 
only  to  the  chance  of  rt#uuqucst  by  Gre-at  Britain,  after  such 
BC])eration  in  detached  contests,  but  also  to  all  the  hazards  of  in- 
ternal warfare  and  civil  dissensions.  80  that  those  who  had 
stood  side  by  side  in  the  common  causo  nizainat  Great  Britain 
might  then,  by  tlie  intrigues  of  their  enemies  and  the  jealousies 
always  incident  to  neighboring  nations,  become  instriimoiits  in 
the  hands  of  the  ambitious  abroad  or  t)ie  corrupt  at  honte,  to  aid 
in  the  mutual  destruction  of  each  other;  and  thiis  nil  surccs- 
sivoly  fall  the  victims  of  a  foreign  or  domestic  tyranny.  Such 
considerations  could  not  but  hare  great  weight  with  all  honest 
and  patriotic  citizeiix,  indi^pendcnt  of  the  real  bletutinKS  which  a 
pcnuaneiit  union  could  not  fail  to  securo  tliroughout  all  the 
States. 

§  219.  It  is  not  surprising,  therefore,  that  a  project  which, 
even  in  their  colonial  state,  had  been  so  often  attempted  by  some 
of  them  to  guard  themselves  against  the  evils  incident  to  their 
political  weakness  and  their  distance  from  tlie  mother  country, 
and  which  had  been  so  often  defeated  by  the  jealousy  of  the  crown 
or  of  the  colonics,'  should  at  a  very  early  period  have  occurred 
to  the  great  and  wise  men  who  assembled  in  the  Continental 
Congress. 

>  S  Hu.  CoU.  1.  kc:  1.1  SSli  8  HeldHiTa  laiMb,  W  ud  Bote;  Uuiball,  Colon. 
S84,  tti,  iti;  1  Kent,  Comm.  1»0,  IBl. 


CB.  n.] 


OUCni  OP  TOE  CONPEDEBATIO.V. 


163 


§  220.  It  vill  be  an  instnictWe  and  uxcful  lesson  to  ns  to 
truce  hUtoricaily  the  stepH  which  led  to  the  formalion  and  final 
udoptioii  of  the  Articles  of  C'onfodoratton  »iid  ]M-r|M.-tiiul  imion 
bctwix-n  the  L'nited  Htates.  It  will  hi;  imttructivc  by  dievlosinff 
the  real  dif1icukic»  attendant  upon  such  a  plan,  even  in  times 
wlien  tlie  necessity  of  it  waa  forced  upon  the  minds  of  men  not 
only  by  common  dang<Brs,  but  by  common  protflolion,  by  conirnoa 
feelings  of  affection,  and  by  common  efforts  of  defence.  It  will 
be  iiscfii),  by  moderating  the  ardor  of  inexperienced  minds,  which 
are  ajkt  to  imagine  that  the  theory  of  goremment  is  too  plain, 
and  tlie  princi))lcs  on  which  it  should  be  formed  too  obvious,  to 
learo  much  doubt  for  the  exercise  of  Uic  wisdom  of  stutesmi-n  or 
the  ingenuity  of  speculatisis ;  notJiing  is  indeed  more  difficult  to 
foresee  than  the  practical  operation  of  given  powers,  unless  it  be 
the  practical  operation  of  ne^trietinns  intended  to  control  those 
powers.  It  is  a  mortifying  truth,  that  if  the  possession  of  power 
sometimrs  Icada  to  mischicvoua  abuses,  the  absence  of  it  also 
acHnetinies  prodnces  a  political  debility,  quite  as  ruinous  in  its 
oonaeKjuencea  to  the  prcat  objects  of  civil  jrovprnrnpnt. 

5  221.  It  in  proposed,  tlicrt-fore,  to  go  int^>  a  historical  review 
of  the  manner  of  the  formation  and  adoption  of  the  Articles  of 
Confederation.  This  will  he.  followed  by  nn  exposition  of  the 
general  providians  and  dintributioiut  of  power  under  iL  Ajid 
this  will  naturally  lead  ua  to  a  consideration  of  the  causes  of  its 
decline  and  fall :  and  tlnia  prepare  the  way  to  a  consideration  of 
the  measuri'A  which  led  to  the  origin  and  fmal  adoption  of  the 
present  Constitution  of  the  United  States.* 

§  222.  On  the  11th  of  June,  1776,  tJio  same  day  on  which  the 
committee  for  preparing  the  Declaration  of  Independence  was 
0)>pointcd,  Congress  resolved  that  *'n  committee  be  appointed  to 
prepare  and  digest  the  form  of  a  confederation  (o  be  entered  into 
between  these  colonies ; "  and  on  the  next  day  a  committee  was 
accordingly  appointed,  consisting  of  a  memtjer  from  each  colony.' 
Nearly  a  year  before  this  period  (namely,  on  the  2Ist  of  July, 


>  n»  Bnt  Tolmiw  cf  tlw  UdIimI  Dutei  Uw^  paUulMd  \>f  Bioren  ud  Dnuia, 
eoaUiai  k  mtnuaiiTj  rwm  of  ihr  p^CMding*  tn  OMi^nM  for  the  auUuknMiit  «f  tfaa 
«<«M«nitlM,  and  ■!»  «f  the  <qBniiit{<ni  tm  th»  ralaUiibninii  ot  Dm  OaaiUtnUaa  «f 
tlw  failed  9t»tM.  And  tliB  wheli  pveccdiDgi  an  givra  ■!  l«j^  ia  Uw  Bnt  *olOOM 
«(  tlia  Semt  Joarniili,  ]niUl>h»d  bj  Od^Tm*  in  1S2I,  p.  S6S.  et  «^ 

*  Jonnula  of  17T4.  p.  SOT. 


lU 


HISTORY   OF  THE  CONfXDERATIOH. 


[dooeu. 


17Tn),  Dr.  FntnkliQ  bsd  submitted  to  Conf^iu  ft  skotch  of  arti- 
cled of  confederation,  which  does  not,  however,  appear  to  have 
been  acted  on.  Thi»e  articles  contemplated  a  union  imtil  a 
reconciliation  with  Great  Britain,  and,  on  failure  thereof,  the 
confederation  to  bo  perpetual. 

I  223.  On  the  12th  of  Juiy.  1776,  the  comraittoe  appointed  to 
prepare  AHicles  of  Coiifudoration  prc8ent«d  a  draft,' which  waa 
in  Uic  handwriting;  of  Mr.  Dickenson,  one  of  the  committee,  and 
a  delegate  from  Pennsylrania.  The  draft,  so  reported,  was  de- 
bated from  the  22d  to  the  Slat  of  July,  and  on  several  days 
between  tJie  dth  and  20th  of  August,  1776.  On  this  laat  day 
Congress,  in  conimiltce  nf  the  whole,  reportc^l  a  new  draft,  which 
was  ordered  to  be  printed  for  the  use  of  the  members.' 

§  224.  The  subject  B«ems  not  again  to  have  been  touched  until 
tJie  ftth  of  April,  1777,  and  (he  articles  were  debated  at  suveral 
times  between  that  time  and  the  loth  of  November  of  the  eamc 
year.  On  this  last  day  tbe  articles  were  reported  with  sundry 
amendments,  and  finally  adopted  by  Congrx^ss.  A  committ«c 
was  then  appointed  to  draft,  and  they  accordingly  drafted  a  cir- 
cular letter,  requcstinii;  the  States  respectively  to  authorise  their 
delegates  i»  Coogreaa  to  subscribe  the  same  in  behalf  of  the 
State.  The  committee  remark  tn  that  letter  "that  to  form  a 
pormunent  union,  accommodated  to  the  opiniona  and  wishes  <d 
the  delegates  of  so  many  States,  differing  in  habits,  produce, 
commerce,  and  internal  police,  was  found  to  be  a  work  which 
QOtliing  but  time  and  reflection,  conspiring  with  a  disposition 
to  conciliate,  could  mature  and  accomplish.  Hardly  is  it  to  be 
expected  that  any  plan,  1^  the  variety  of  prorisiona  esaential  to 
our  union,  should  exactly  correspond  with  the  maxims  and  politi* 
cal  views  of  every  particular  State.  Let  it  bo  remarked,  that 
after  Uie  most  careful  ini^uiry  and  the  fullest  infonnation,  Ihia 
is  proposed,  as  Uic  bi-sl  wliioh  coubi  l>e  adapted  to  tlie  circum- 
stances of  all,  and  as  that  alone  which  affords  any  tolerable  pros- 
pect of  general  ratification.  Permit  us,  then  [add  the  committee], 
earnestly  to  recommend  these  articles  to  the  immediate  and  dia- 
|)aasionatc  attention  of  the  legislatures  of  the  respegtire  states. 

1  Tb*  draft  of  1>T.  rruikUn,  wd  (bit  draft,  nadantood  to  b«  bf  Xr.  UAsBani. 
ntn  n«nt  priai«4  nnUl  the  pnUlulian  of  the  8<N*ct  JmumJ*  b;  onkr  of  OcngnM 
tn  1S21,  wIiciK  llMjr  wiU  ba  fmwd  ondtr  pafM  283  and  3M. 

*  SmM  Jonmik  1774,  p.  Kt. 


CH.  n.] 


OniGlK   OF  THE  CONFEDEaATIOK. 


165 


Let  Uipm  he  CAndidly  rericwod  under  a  soiuc  of  the  difficulty  of 
Combiniug,  in  on<:  general  »yst«iii.  tbc  various  dCutimcnU  and 
interogts  of  n  continent,  divided  into  ^  many  Bovcrei)ni  and  in- 
dependent oommunities,  under  n  conviction  of  the  absolute  neccs- 
nity  of  uniting  all  our  councils  and  all  04ir  strength  to  maintain 
and  defend  our  comn>nn  liberties.  Let  them  be  examined  with 
ft  liberality  becoming  brethren  and  fellow-citizens,  surrounded 
by  the  same  imminent  dangijrs,  contending  for  the  aame  illustri- 
ous prixe,  and  deeply  interested  in  l>cing  forever  bound  and  con- 
nected together  by  ties^e  most  intimate  and  indisaoluble.  And, 
finally,  let  tlicm  be  adjusted  with  the  temper  and  the  magna- 
nimity of  wific  and  patriotic  legislatoni,  who,  while  they  are 
concerned  for  the  prosperity  of  their  own  more  immediate  circle, 
arc  vapublo  of  rising  sujx'rior  to  local  attachments,  when  they 
may  be  iui^mputible  with  the  safety,  happiness,  and  glory  of 
the  general  confederacy." 

§  225.  Such  was  tlio  strong  and  eloquent  ap|)eal  made  to  tho 
States.  It  curried,  however,  very  slowly,  conviction  to  the  mindd 
of  the  local  legislature.  Many  objections  were  stated,  and  many 
amendmcnta  were  projioRed.  All  of  them,  however,  were  rejuclcd 
by  Congress,  not  probably  because  they  were  all  deemed  inexpe- 
dient or  improper  in  tbemselves,  but  from  the  danger  of  seuding 
the  inslrunivnt  back  again  to  all  the  Htatcs  for  reeunsidoratioii. 
Accordingly,  on  the  26th  of  June,  1778.  a  copy,  engrossed  for  ra- 
tificatiun,  was  prepftred,  and  tlie  ratilicaXiuu  begun  ou  tho  tKli  day 
of  July  following.  It  was  ratified  by  all  the  Htatvs,  except  Dela- 
ware and  Mitryland,  in  1778;  by  Delaware  in  1779,  and  by  Mary- 
land on  the  1st  of  March,  1781,  from  which  last  date  its  final  ratili- 
cation  to<^  effect,  and  was  joyfully  anuotmccd  by  Congrem.' 

§  22(1.  In  reviewing  the  objectiona  taken  by  the  various  Statei 
to  the  adoption  of  Uie  confederation  in  the  form  in  which  it  was 
persented  to  tJiem,  at  least  »o  far  as  those  objcctiona  can  be  gath- 
ered from  tlie  oflieial  ants  of  tbtwe  Statea,  or  their  delt^eatot  in 
Congreaa,  some  of  them  will  apj^iear  to  be  founded  upon  a  desire 
for  verbal  amendments  conducing  to  greater  accuracy  and  cer- 
tainty ;  and  some  of  them  upon  considerations  of  a  more  large 
and  im|H>rtaut  )>earing  upon  the  interests  of  the  States  respec- 
tively, or  of  the  Union.*    Among  tlie  latter  were  the  objections 

>  8«nt  JonrtMli,  401.  41S.  423, 1S4.  4M:  S  Kent's  Coinm.  IM.  1»7. 
■  t  ntk.  Hitt.  eb.  11.  pp.  IB  to  M;  1  Kent*  Coinn.  1?T,  IW. 


166 


HISTOBY  OP  TBE  OONFEDEIUTIOK. 


[booeo. 


tofeen  and  alterations  proposed  in  respect  to  tlio  apportloninciiE  of 
taxes,  and  of  the  quota  of  public  forces  to  be  rni»vd  amoii),'  (1iq 
States,  bjr  Maa»achuiu>ttii,  Connecticut,  New  Jersc)*,  and  Pciut- 
Sylrania.'  There  was  also  an  abundance  of  jealousy  of  the  power 
to  keep  up  a  standing  army  in  time  of  peaca' 

§  327.  But  that  which  seemed  to  be  of  paramount  importance, 
and  which  indeed  protracted  the  ratification  of  the  confederation 
to  so  late  a  period,  nras  the  alarming  controvcrsj  in  respect  to 
the  boundaries  of  some  of  the  Stales,  and  the  public  lands  held 
hy  the  crown  within  thuHC  rt-putod  bouudurics.  Ou  tho  one  hand, 
the  great  States. contended  that  each  of  them  had  an  exclusive 
title  to  all  tho  lauds  of  th«  crown  within  ita  boundaries;  and 
these  boundaries,  bv  the  claims  under  some  of  the  ehiulers,  ex- 
tended to  the  Soulti  Sea,  or  to  an  indvliiutc  extent  Into  tho  un- 
cultivated western  wildenieaa.  On  the  other  hand,  tiio  other 
States  as  strenuously  contended  that  tho  territory,  uiisettlcd  at 
tlie  eommcnceiuent  of  the  war,  and  claimed  by  the  British  crown, 
which  was  ceded  to  it  by  the  treaty  of  I'aris  of  1763,  if  wrested 
from  the  common  enemy  1>y  the  blood  and  treasure  of  tJie  thir> 
teen  States,  ought  to  lie  deemed  a  common  property,  subject  to 
the  disposition  of  Congress  for  tlie  general  good. '  Rhode  Is- 
land, Delaware,  New  Jersey,  and  Uaryland  iosistod  upon  aoioo 
provision  for  establishing  tho  western  boundaries  of  the  States, 
and  for  tJic  recogiiitii.>n  of  the  uosettted  western  territory  as  the 
property  of  the  Union. 

§  228.  The  subject  was  one  of  a  per)>otualIy  recurring  interest 
and  irritation,  and  threatened  a  dissolution  of  the  ooofederucy. 
New  York,  at  length,  in  February,  1780,  passed  an  act  author- 
izing a  surrender  of  a  part. of  the  western  territory  claimed  by 
lier.  Congress  embraced  the  opportunity,  thus  ofTordcd,  to  ad- 
dress the  States  on  the  subject  of  ceding  the  territory,  reminding 
them  "bow  indispenfiably  necessary  it  is  to  estahliah  the  Federal 
Union  on  a  lised  and  permanent  bssts,  and  on  principles  accepta- 
ble to  all  its  rcspi-ctivc  memliers;  bow  essential  to  public  credit 
and  confidence,  to  tho  aupgxirt  of  our  army,  to  the  vi;?or  of  our 
councils,  and  the  success  of  our  measurt«;  to  our  trantiuillity  at 
home,  our  reputation  abroad;  to  our  very  cxisteneo  as  a  free, 

>  SfFRt  JoiirMlt,  STl,  tn.  Hi.  373,  8S1 ;  2  Pillt.  QUI.  A.  t1.  pp.  1«  to  9S. 

•  SmM  Jwuniits,  373,  STS,  393:  3  IMk.  Hiit.  ob.  11,  if.  IB  to  SI. 

•  9D*)l  R.i;o,  ptf  Jajr,  C.  J.i  S  l>iUt.  UbL  cb.  II,  p|>.  IB  tsSS. 


CH.  II.J  OBIOIN  OF  THE   COKFEDERATIOK.  167 

sovereign,  and  independent  people. "  They  reconimeoded,  with 
eamestuess,  a  ceHsion  of  the  weBtem  territory ;  and  at  the  same 
time  they  as  earnestly  recommended  to  Maryland  to  subscribe  the 
Articles  of  Confederation.'  A  cession  was  accordingly  made  by 
the  delegates  of  New  York  on  the  Ist  of  March,  1781,  the  very 
day  on  which  Maryland  acceded  to  the  confederation.  Virginia 
had  previously  acted  upon  the  recommendation  of  Congress ;  antl 
by  subsequent  cessions  from  her,  and  from  the  States  of  Massa- 
chusetts, Connecticut,  South  Carolina,  and  Georgia,  at  still  later 
periods,  this  great  source  of  national  dissension  was  at  last  dried  , 
up.*  (a) 

1  Secnt  JonnlB1^  i  BepL,  1760,  p.  U2\  1  Krat'i  Cotnm.  1&7, 198;  S  IHtk.  HiiL 

oh.  u,  pp.  i»  to  se. 

*  The  hiatot;  of  thg«  ccsnoni  wUl  be  foimd  in  Uia  IntrodactioD  to  tha  Land  Iawi 
or  the  Duiied  States  printed  b^  order  of  Congreai  in  1810,  1817,  and  1S28;  and  in 
the  first  Tolnme  of  the  Lawa  of  the  United  Statet,  printed  bj  Bioran  and  I>iiane  in 
1816,  p.  4S2,  feo. 

(a)  Thi*  antijeot  li  coiuddeTed  tome-  I.  2S7,  d  wj>.  I|ie  Hildnth,  Hiit.  of 
wbatbjlb.  BiTHmhiiLifeoflbdiaaD,     U.  S.  ILL  S9S-      V 


m 


unrroiT  or  rni  conrtDonTimi. 


[bdokil 


CBAPTBR  m. 


AKALraiH  nr  ntR  Amcuft  op  oohpedibatiok. 


I  880.  In  |iiini»iiioo  of  llio  dmlKn  ftlrcndy  umounood,  It  JB 
lifiw  |ii'<i|KiiM>il  to  give  nn  aiinlynis  of  Uio  Articles  of  CuiLf«dera- 
tltMi,  itr,  •»  ii»*y  iin)  ddiMmiitatvd  Ui  tliu  IttKtruiiteDt  it«eU,  Ute 
"ArtlniM  of  Coiifodumtlori  anil  Pcrjietual  Union  between  the 
Hliil<Ni,"  iw  1I117  worn  finally  adoptod  by  the  thirteen  States  in 
17HI. 

I IIIU).  'lllR  «tyli>  of  tJio  confoilorncj-  vm  by  the  first  article  de- 
I'Imrd  lo  li*«  "Tbc  Unit*-*!  Stulua  of  America."  The  second  arti- 
v\v  ilivlith<il  IIihI  ciu'Ii  HtAto  rotaitkod  its  sorereignty,  freedcuQ, 
Mid  Inili'iHMidrncis  utd  every  powur,  junadiotion,  and  right 
whioh  WBn  not  by  Ihl*  confwloratioH  rrprtttl^  delegated  to  the 
I'lillt-d  Sluli'iN  lu  Cuii)(niH  aAimititeil.  The  third  article  declared 
IhftI  Ww  SlulMi  acvoniUy  oiitemd  into  a  lirm  league  of  friendship 
wltd  t'aeh  I'lliiT,  fur  tbeip  oniiunon  doffm-f,  Iho  •eciirity  of  their 
liU<rtli<«,  lUul  titoir  niittiiitl  and  gi'nerat  welfare,  binding  them* 
««i|v\<«  to  HMint  iNioti  ottwr  ajTuinst  all  fonH<  offensl  to  or  attack* 
umtto  ii)>iiii  llicu),  or  any  i^f  tlK'ni,  on  account  of  religion,  soveT' 
ptmity,  (null-.  <»r  nivv  other  |ireloJic«  vhateivr.  The  fourth  utiele 
«1i«i'liiivil  lliHl  tho  (r^v  iiihabitanta  of  each  cA  the  States  {ragaboadi 
and  f\i|itllvr4t  fnuii  jtKitioe  oxer|>le<d)  should  Iw  entitled  to  all  the 
)vrtxl)i-iis«  vtt  itw  eitixena  iu  tho  aeveral  Statea;  that  the  people 
yi  iMtoh  State  ah^Hild  baw  frvo  ingma  and  r^ress  to  aad  burnt. 
fthy  i4h<M-  St«t<\  and  atHwM  «n/wr  all  the  privikfes  of  tnde  aad 
tmwatwt^  iMtgMi  to  ttrt  eanw  dotna  and  nntrfctkaB  as  die  i>- 
klMttiltii  UaI  ItBiHtTCa  iKwi  inattm  alMld,  ■pw  4MMd  ef  tke 
<ivMvttli\<i>  vt  Ihe  St»t»  Criioa  wftkk  ttier  Sedt  be  delimvd  ^;  aad 
OiM(WUIMt4ia«a«»tftikwaM  b»  0tcb  te  AMb  rf  tte 

tin  A»  iwMnbb  M«fc  «nd  JtficU  |iiwea*lngi  of  the 

I  HMiiiMnUvK  fi  *vert  ^atlw  ^atek 
iSJA.  ll«nil««ilMtt|NwvMi4l»1lH 

«tr  a  fMH«*l  CVn^reetA,  4(«lai4a$  dMI  ddavMsAaaU  •*! 


CH.  in.]     AKJtLTftIS  or  THE   ABTICLCS  OF  OOIfFEDlRATION. 


169 


meet  in  Congress  on  the  first  Monday  Id  ovciy  year,  with  a  power 
reiieiTed  to  each  State  to  recall  an.v  or  all  of  the  dolegates,  and 
to  send  otheni  in  their  atead.  No  State  vm  to  be  repreBcntcd  in 
CongKss  by  less  than  two  or  more  than  seven  ntemlwra.  No 
delegate  was  oliialile  for  more  than  three,  in  any  term  of  six 
years;  and  no  dclcf^utc  was  capable  of  holding  any  oGlioe  of  eniol> 
umimt  undvr  the  United  States.  Bach  Slate  was  to  maintain  its 
own  delegates,  and  in  determining  questions  in  Congress  was  to 
have  one  rutc.  Freedom  of  spc-vch  and  debate  in  Congress  was 
not  to  be  impeached  or  questioned  in  any  other  place;  and  the 
memliers  were  to  be  protected  from  arrest  and  imprisonment 
during  the  time  of  their  going  to  and  from,  and  attendance  on 
Congress,  except  for  trcaaon,  felony,  or  breach  of  the  [wace, 

§  Zi±  liy  8ul)«eqiicnt  articles  Congress  was  invested  with  the 
sole  and  exclusive  right  and  power  of  determining  on  peace  and 
war,  unleiiR  in  case  of  an  invasion  of  a  State  by  enemies,  or  an 
imminent  danger  of  an  invasion  by  Indians;  of  sending  and  re* 
ceiling  ambaBMtdora ;  entering  into  treaties  and  alliances,  under 
certain  liraitafionn  as  to  treaties  of  commerce;'  of  establishing 
rules  for  deciding  all  cases  of  capture  on  land  and  water,  and  for 
the  division  and  appropriation  of  prizes  taken  by  the  land  or 
naval  forces  in  the  sen'ice  of  the  United  States;  of  granting^ 
letters  of  marque  and  reprisal  in  times  of  peace;  of  appointing 
courts  for  the  trial  of  piracies  and  felonies  committed  on  the  high 
seas;  and  of  establishing  courts  for  receiving  and  Gnatty  deter- 
mining appeals  in  all  cases  of  captures. 

§  2i&.  Congress  was  also  in\-ested  with  power  to  decide  in  the 
last  resort,  on  apjx-al,  all  disputes  and  difFerenccs  between  two  or 
more  States  concerning  Iwundar)-,  jurisdictiun,  or  any  other 
cause  whatsoever ;  and  the  mode  of  exercising  that  autliority  was 
specially  prescribed.  And  all  controwrsiea  concerning  the  pri- 
vate right  of  soil,  claimed  under  different  grants  of  two  or  more 
States  before  tlic  settlement  of  their  jurisdiction,  were  to  be 
finally  debcrmined  in  the  same  manner,  upon  tJie  petition  of 
eittier  of  the  grantees.  But  no  State  was  to  be  deprived  of  terri- 
tory for  tlte  benctit  of  the  United  States. 


>  "Ifotratf  nroOQMHOcabatllwBBtit^vluNbjttlMbgUUtlvapiMnrof  thaSMtca 
ditll  he  rartnltifil  froM  Inpodog  Nuk  Impoita  and  dnliot  on  krrignen  u  ibtir  owd 
prof]*  v«  Mli^fcUd  to,  or  fram  jxchibillng  Ih*  Pipoftotku  «t  iMporttlktn  of  anf 
I  «<  gooda  M  esmaoltliM  vbataotTsr."    Art  IX. 


170 


BCtTORT  OP  THE  CONPRDERATIOK. 


[buok  II. 


}  284.  Congress  was  al^  invested  with  the  sole  and  exctuBive 
right  nad  \mwar  of  regulating  the  alloy  and  ralae  of  coin  struck 
by  their  own  anthority,  or  that  of  the  United  State*;  of  fixing 
tile  standard  of  weiglits  and  measiirea  tliroughotit  the  United 
States;  of  regulating  the  trade  and  managing  alt  affairs  with  the 
Indiann,  not  niembcra  of  any  of  the  States,  provided  that  tlie  le- 
gislative right  of  any  State  within  ila  own  limits  should  not  be 
infringed  or  violated;  of  eatahlishing  and  r^ulating  post-oflSces 
from  one  Ktate  to  another,  and  esaeting  po«t*go  to  defray  the 
ex|>ense8 ;  of  appointing  all  officers  of  the  land  forces  in  the  ser- 
vice of  the  United  States,  except  regimuntat  oflicers;  of  appoint- 
ing all  of&cers  of  the  naval  forcra,  and  commissioning  all  oflioers 
whatsoever  in  the  service  of  the  United  States;  and  of  making 
nik-s  for  the  government  and  regulation  of  the  land  and  naval 
Corocs,  and  directing  their  operations. 

§  335.  Con<;rL^8S  was  also  invested  with  authority  to  appoint  n 
oommittcc  of  the  States  to  sit  in  the  recess  of  Congress,  and  to 
consist  of  one  delegate  from  each  State,  and  other  coininittees 
and  civil  officers  to  manage  the  general  aftnini  under  tlieir  direc- 
tion; to  appoint  one  of  their  number  to  preside,  but  no  petson 
wag  to  sen'O  in  the  office  of  president  more  than  one  year  la  the 
term  of  three  years;  to  ascertain  the  necessary  sums  for  the  publio 
service,  and  to  appropriate  the  same  for  defraying  tlie  publio 
expenaea;  to  borrow  money,  and  emit  bills  on  the  credit  of  the 
United  States;  to  build  and  equip  a  navy;  to  agree  upon  the 
number  of  land  forces  and  make  requisitions  upon  each  State  for 
ita  quota,  in  proportion  to  the  number  of  white  inhabitants  in 
BOoh  State,  The  Icfjislature  of  each  State  were  to  apfwint  the 
regim<-ntal  officers,  raise  the  men,  and  clothe,  arm,  and  equip 
them  at  the  expense  of  the  United  States. 

I  236.  Congress  was  also  invested  witli  power  to  adjourn  for 
any  tJmo  not  exceeding  six  months,  and  to  any  place  within  the 
United  States;  and  provision  was  made  for  the  publieatioa  of  its 
journal,  and  for  entering  the  )-oas  and  nays  thoreon,  when  desired 
by  any  delegate. 

$  23T.  Such  were  the  powers  confided  in  Congress.  Bat  even 
these  wore  greatly  restricted  in  tlieir  exorcise;  for  it  was  ex- 
pressly provided  that  Congress  should  never  engage  la  a  war ;  nor 
grant  letters  of  marque  or  reprisal  in  time  of  peaee;  nor  enter 
into  any  treaties  or  alliances;  nor  coin  money,  or  regulate  the 


CR.  III.]     AKALTHU  OP  THE  AElTiCLES  OF  CONFEDERATION. 


171 


Taloe  thereof;  nor  asccrtuin  Uic  suiua  or  expenses  nccccsarjr  fur 
tbe  defenoo  and  wolfure  of  the  United  Htntva;  nur  i-mit  bills; 
Bor  borrow  mcmc}'  ou  Uie  credit  of  tlic  Uiiited  States;  nor  appro- 
priate munoy ;  aor  ngrea  upon  the  nuiiibor  of  resscts  of  war  to  be 
built  or  purcliiutiHl,  or  the  number  of  land  or  itca  forces  to  bfl 
raiaod ;  nor  appoint  a  comniauder-in-chicf  of  the  arraj-  or  navy, 
vhUm  ttine  Staltt  thoulJ  (WMiit  to  the  Mmf.  Atid  no  question 
un  any  other  point,  except  for  adjourning  from  day  to  day,  was 
to  be  determined,  except  by  tJie  vote  of  a  majority  of  Oie  .States. 

§  388.  The  committee  of  the  States,  or  any  nine  of  them,  vera 
authorized  in  tlie  recess  of  Congress  to  exetvi^c  auch  powers  aa 
Congi-css,  with  the  assent  of  nine  States,  should  think  it  expedi- 
ent to  Tcst  tliom  witlt,  except  such  powers  for  the  excreise  of 
which,  by  the  Articles  of  Confedomtiun,  tbe  axseut  of  nine  States 
was  r^uitvd,  which  could  not  he  tJius  del^^tcd. 

§  2:!0.  It  was  further  pntrided,  that  all  bills  of  credit,  moneys 
Iwrrowed,  and  debts  c^mtracted  by  or  under  tJic  sutLority  of  Con- 
gress before  the  confederation,  ahould  be  a  charge  against  the 
United  States ;  that  when  land  forces  were  raised  by  any  State  for 
the  common  defence,  all  oflicx>rs  of  or  under  the  mnk  of  colonel 
should  be  apixiinled  by  the  Icgifllatiire  of  the  State,  or  in  such 
manner  aa  the  State  should  direct;  and  all  vncaDcics  should  be 
filled  up  in  the  same  manner;  that  all  char^^s  of  war,  and  all 
other  expenses  for  the  common  defence  or  generul  welfare,  should 
be  defrayed  out  of  a  common  treasury,  which  sliould  bo  supplied 
by  the  several  States,  in  proportion  to  the  value  of  tlie  land 
within  each  Stale  granted  or  surveyed,  and  the  btiildiiigs  and  im- 
provements tJicrcon,  to  be  estimated  according  to  the  mode  pro- 
scribed by  Coiigi-oss;  and  the  taxes  fur  thut  ijro)>ortion  wer«  to  be 
laid  and  levied  by  the  legislatures  of  the  States  within  tlio  tiiDO 
agreed  opon  by  Congress. 

§  240.  Certain  prtJiibitions  wero  laid  upon  the  exercise  of 
powers  by  ihe  rpspectivo  States.  No  St»tc»  without  the  voiuout 
of  tho  United  States,  could  send  an  embassy  to,  or  receirv  an 
embassy  from,  or  enter  into  any  treaty  with  any  king,  prinec,  or 
state;  nor  could  any  person  holding  any  ofTico  under  tlie  United 
States,  or  any  of  them,  accept  any  present,  emolument,  office,  or 
title,  from  any  fi>roipn  kinc;,  prince,  or  state;  nor  could  Cong«>sa 
itself  grant  any  title  of  nobility.  No  two  States  could  enter  into 
any  treaty,  confederation,  or  allianoe  with  each  otiier,  without 


\ 


172 


BISTORT  or  TUB  COKPKDESaTION*. 


[book  d. 


the  consent  of  Congress.  No  State  could  lay  any  iinpuata  or 
duties  which  might  interfere  with  any  then  pruposcd  treaties. 
No  vesseU  of  war  were  to  be  kept  ap  by  any  titato  iu  time  of 
peace,  except  dwrntsi  necessary  by  Conprcsa  for  its  dofi-ncc  or 
trade,  nor  any  body  of  forcoa,  esvopt  such  aa  shuuld  be  deemed 
rcquioito  by  Coogn-Ha  to  gnrriwm  its  forts,  and  necessary  for  its 
defence.  But  every  Btatc  was  required  always  to  keep  up  a  woll- 
rt'jfuluted  and  diitciplined  militia,  sufficiently  annt-d  and  ac- 
coutred, and  to  Ije  provided  with  suitable  Geld-pieccs  and  tcntu, 
and  uniis  and  ammunition  and  cnuip  equipa^^^.  No  State  could 
cu)^!)^-  in  war  witliutit  the  consent  of  Cout^-ss,  unless  actually 
invaded  by  enemies,  or  in  danger  of  invasion  by  th«  Indians. 
Nor  could  liny  folate  grant  commiiisions  to  any  Khi|)S  of  war,  nor 
Icttcre  of  marque  and  reprisal,  except  nftor  a  declaration  of  war 
by  Congress,  untesB  siicb  Stato  were  infested  by  pirates,  and 
then  subject  to  the  determination  of  ConKn^ss.  No  State  Could 
prevent  the  removal  of  any  property  imported  into  any  Stitc,  to 
any  other  State,  of  which  the  owner  was  an  inhabitant.  And  no 
imposition,  duties,  or  restriction  could  be  laid  by  any  Stato  on 
the  property  of  the  United  States  or  of  either  of  thcuL 

§  '^4L  There  was  also  provision  made  for  the  admission  of  Ca- 
nada into  the  Union,  and  of  other  colonies  with  the  assent  of 
nine  States.  And  it  was  Anally  declared  tliat  every  Stato  should 
abido  by  tlic  determinations  of  Congress  on  alt  questions  sub- 
mitted to  it  by  the  confederation;  that  the  articles  should  bo 
inriolably  observed  by  every  Stale;  that  (hf  vnion  thould  iff-  pi-r- 
fjfettal;  and  that  no  alterations  should  be  made  in  any  of  the 
articles,  miless  agreed  to  by  Congreaa,  and  confirmed  by  the 
legislatures  of  every  State. 

§  242.  Such  is  the  nuttatance  of  this  celebrated  instrament, 
under  which  the  treaty  of  peace,  acknowledging  our  indepen- 
dence, was  negotiated,  the  war  of  the  Revolution  concluded,  and 
the  union  of  the  States  maiutained  until  the  adoption  of  the 
present  Constitution. 


CH.  IV.]         DECUHK  AMD   FALL  OF  TUB  CONFEDEKATION. 


ITS 


CFiAPTER  nr. 


DECUKB  AKD   FAU.  OP  TIIK  CONrBDERATTOK. 


§  S4S.  Anv  Buirej,  howeTer  Blight,  of  the  fionfecleratlon  vitl 
iinpr««8  the  tuind  with  the  intriDsic  dillicultioH  which  attended 
the  formation  of  its  princiiui]  features.  It  ia  well  known  that 
apOD  thiw!  importHrit  points,  touching  thf  common  rights  and 
Interests  of  the  several  States,  much  diversity  of  opinion  pre- 
railcd,  and  many  &uimut«d  diBCUssions  took   place.     The   first 

piriiB,  as  to  the  mode  of  votinir  in  Congress,  whether  it  should  bo 
by  Statra,  or  According  tu  wealth  or  ixjpulntiou.  The  second,  as 
to  the  rule  by  wliicli  the  expenses  of  the  Union  should  be  appor* 
tioncd  among  the  Slates.  And  the  tliird,  as  has  l>een  already 
seen,  relative  to  the  disposal  of  the  vacant  and  unappropriated 
lands  in  the  «-c8tern  territory. '{a) 

§  244.  But  tliat  which  strikes  us  with  most  force  is  the  unceas- 
ing jealousy  and  wntclifulticss  everywhere  betrayed  in  respt-«t  to 
the  powers  to  bo  conltded  to  the  general  government  For  this 
several  causes  may  be  assigned.  The  colonies  had  been  long 
engaged  in  stnipifles  agninst  the  superintending  authority  of  the 
crown,  and  had  jtractically  felt  the  inconveniencen  of  the  reetric- 
ttve  legislation  of  the  parent  country.  These  struggles  liad 
naturally  led  to  a  general  feeling  of  resistance  to  all  external  au- 
thority; and  these  inconveniences  to  extreme  doubts^  if  not  to 
dread  of  any  legislation  not  exclusively  originating  in  their  do- 
mestic asHembliea.  They  had,  as  yet,  not  felt  the  importance  or 
necessity  of  union  among  themselves,  having  iM.'en  hitherto  con- 
nected with  the  British  sovereignty  in  all  their  foreign  rclationa. 

^Wfaat  would  \tc  their  fnte  u  BCparato  and  independent  oommuni- 

ic«;  how  far  their  interests  would  coineidL'  or  vary  from  each 

Other  as  such;  what  wotUd  bo  the  effects  of  tho  Union  upon  their 

)  s  PUk.  HUt  IS. 

(«)  Tacksr,  Hiat  ol  V.  8.,  I.  311 ;  Hildmb,  Ilut.  ef  C.  &,  lU.  S98. 


1T4 


HXSTORy  op  THE  CONFEBEllATIW. 


[book  II. 


dtnncstic  peace,  their  territorial  inltrrata,  their  external  com- 
merce, tJicir  political  uecurity,  or  their  civil  liberty, — were 
pointfl  to  thom  wholly  of  a  »]}CCulativo  character,  in  regard  to 
which  variutm  o[)iriiunB  might  be  entertained,  an<)  vHrious  and 
even  opposite  conjectures  lonncd  tipun  grounds  apparently  of 
equal  plausibility.  I1icy  were  smarting,  Coo,  under  the  severe 
BufTcringfl  of  war;  and  hardly  bad  time  to  look  forward  to  the 
future  events  of  a  peace ;  or  if  they  did,  it  would  be  obvioualy  a 
period  for  innre  tmivjuil  discussions,  and  for  a  )>etter  undnnttand- 
ing  of  their  mutual  interests.  They  were  suddenly  brought  to- 
gether, not  80  much  by  any  deliberate  choice  of  a  permanent 
union,  aa  by  the  nrceftsity  of  mutual  co-opemtion  and  support  in 
resistance  of  the  roeasurea  of  Great  Britain.  They  found  them- 
selves, after  having  assembled  a  general  Congrects  for  mut«ial  ad- 
vice and  cncouraRemnnt,  compelled  by  the  course  of  events  to 
clothe  that  body  with  sovereign  powers  in  the  most  irregular  and 
summar)-  manner,  and  to  permit  them  to  assert  the  general  pre- 
rugutivca  of  peace  and  war,  without  any  previous  compact,  and 
saucttuncd  only  by  the  silent  acquiescence  of  the  people.  Under 
such  circumstances  each  State  felt  tlut  it  was  the  true  path  of 
safety  to  retain  all  sovereign  powers  within  its  own  cnntrnl,  the 
surrender  of  which  was  not  clearly  seen,  under  existing  cirrum- 
slancca.  to  be  demanded  by  an  imperious  public  necessity.'  (a) 

§  245.  Notwithstanding  the  declaration  of  the  articles,  that 
the  imion  of  the  Stiiitos  was  to  bo  perpetual,  an  examination  of 
the  powers  confided  to  Uio  gvneral  government  would  easily  sat- 
isfy us  that  they  looked  priucipally  to  the  existing  revolutionary 
state  of  tilings.  The  pnuciiMil  iwwcrs  respected  the  operations 
of  war,  and  would  be  donuunt  in  timen  of  peaee.  bt  sburl.  Con- 
grew  in  peace  was  possessed  of  but  a  delusive  and  stuidowy 
sovereignty,  with  little  more  Uian  the  cnpty  pageantry  of  office. 

>  Dr.  Rsib.  ia  ■palcgiiias l«r  UimMmU «r  IliB  omfcdcratioM,  luaoWmd,  "Th« 
coMMrMiod,  toffiOta  witli  mart  «t  am  State  cooatUatlaaa,  ww  Ibiwal  mi4«r  vnjr 
UUGirorablo  ciretmiBbMtM.  Wo  h»d  Jut  «w«tyid  tmn  a  cornpUit  nwBwclty.  A1- 
tbMBgh  wt  mdcntaod  iwtftctly  tha  pnndiilra  «l  libcf  I?,  yrt  »(at  U  a*  vin  igncnat 
of  the  fbrtn*  uul  Mmbinatioiu  of  pomr  In  rrixiblic*.  Add  to  llita  tlic  BritUh  tmy  in 
tb*  hckrt  of  oar  countrr,  ipnadlng  <l«ai>Utiun  ifbtttrtr  tl  venl."  I  Amer.  MiUEUm, 
B.  Sm«I»  1  Amr.  UnioaBi,  370.  1%»  II<tUi  Amrrins  Kfvww.  (or  Oct,  1637.  ooa< 
triMftMinsnirorMDMor  tli«praiuiimtMnt«c(tlMoanfciIaitloa.    AHl.  [kM(^ 

(<■>  8m  BlitHjr  of  til*  CoBitUaUw  hy  CartH  B.  IL 


CH.  IT.]  onCUNB  AND    FALL  OP  THE  OONFl:OEKATIOK. 


176 


They  w«ru  indeed  clothed  with  the  authority  of  sending  *nd  re- 
ceiving anibasMidoni ;  of  ont«ring  into  treaties  and  alliances;  of 
appointing  coiirtD  for  the  trial  of  piraciea  aad  felonies  on  the 
high  seas;  of  regulating  the  public  coin;  of  fixing  the  standard 
of  weights  and  mcasiireit;  of  regulating  trade  witli  the  Indians; 
of  estalilishing  postHjflicca.;  of  borrowiug  money,  and  emitting 
hills  on  the  credit  of  tlie  UuUid  States;  of  ascertaining  and  ap- 
propriating tlib  sums  necessary  for  defraying  tlie  public  expenses, 
and  of  dis[>08ing  of  the  n'csteru  territOQ'.  And  most  of  these 
powers  required  for  thoir  exercise  the  assent  of  nine  States.  But 
they  pOMsestied  not  the  power  to  raise  any  revenue,  to  levy  any 
tax,  to  enforce  any  law,  to  secure  any  rigiit,  to  regulate  any 
trade,  or  cron  the  poor  prorogalivc  of  commanding  means  to  pay 
their  own  ministers  nt  a  foreign  court.  Tliey  could  contract  debts, 
bnt  they  were  withotiC  means  to  discharge  them.  They  could 
pledge  the  public  failli,  bnt  they  were  incapable  of  redeeming  iU 
Tliey  could  enter  into  treaties,  hut  every  State  in  the  Union 
might  disobey  tliem  with  impunity.  They  could  contract  alii- 
aneea,  but  could  not  command  men  or  monry  to  give  ihom  vigor. 
They  could  institute  courts  for  piracies  and  folnnics  on  the  big^ 
seoA,  but  they  had  no  means  to  pay  either  the  judges  or  the  jo- 
rora.  In  short,  all  i>ower9  which  did  not  execute  themselves 
were  at  the  mercy  of  the  States,  and  miglit  be  trampled  upon  at 
will  with  impunity. 

$  246.  One  of  our  leading  writers  addressed  the  following 
strong  language  to  the  public:^  **  By  this  i>oliticat  compact  the 
United  States  in  Congrcsa"  have  exclusive  power  for  the  follow- 
ing purpixies,  wthout  being  al>lo  to  execute  one  of  them.  TTicy 
may  make  and  conclude  treaties,  but  can  only  recommend  the 
observance  of  them.  They  may  appoint  ambassadors,  btit  cannot 
defray  oven  the  expenses  of  their  tnbk-a.  Thi?y  may  borrow 
money  in  their  oim  nnmo  on  the  faith  of  the  Union,  but  eaniiot 
puy  a  dullnr.  TliL-y  may  coin  money,  hut  they  cannot  p^irchose 
an  ounce  of  bullion.^  They  may  make  war,  and  determine  what 
uuohcr  of  troops  arc  necessary,  but  cannot  raise  a  single  soldier. 
In  thirty  thty  may  declare  everifthin^,  but  do  nothing."* 

$  247.    Strong  as  this  langn^^  may  seem,  it  has  no  coloring 

>  1  Amw.  Hiu.  17S4,  f.  370. 

*  Ungung*  ^mSXj  Mnm^  and  «Ima«t  Uratkal  In  ttywiltii,  will  b*  toond  in  Ur. 
jK}r'>l<ttvr,  aiMmMdlotlMrmplBorKe'Tork.  1TS7  ;  >  Amtf.  llmMm,BS*,BM. 


176 


HtSTORT  OP  THE  COK PEDES ATIOM. 


beyond  what  the  naked  trnth  would  jufttifj.'(a)  Washia^ 
himoclf,  that  patriot  without  stain  or  reproach,  speaks  in  1785 
with  iinuaual  signifioancy  on  the  same  subjoet.  "In  a  word," 
says  he,  '^thu  confcderution  appears  to  mo  to  bo  little  moru  than 
a  shadou'  without  the  substance;  and  Congress  a  nu|^tory  body, 
tlivir  ordinances  buiu)^  little  attondcd  io."'  The  same  senti- 
mcntH  may  be  found  in  many  public  documents.'  One  of  Uie 
most  humiliating  proofs  of  the  utter  inability  of  CongrenB  to  en* 
force  wen  tho  exclusive  powers  rested  in  it  is  to  be  found  in  the 
arj^umcntativc  circular,  addressed  by  it  to  the  sereral  States,  in 
April,  1787,  cntix-ating  them  in  the  most  supplicating  manner 
to  repeal  such  of  their  laws  as  interfered  with  the  treaties  with 
foreign  nations.*  "  If  in  theory,"  says  the  historian  of  Waahing- 
ton,  *'  the  treaties  formed  by  Congress  wore  obligatory,  yot  it  had 
been  domonslratcd  that  in  practico  that  body  was  almolately  un- 
able to  carry  them  into  execution."' 

§  2-18.  Tlic  leading  defects  of  the  ctHifederation  may  be  enu- 
merated under  the  following  heads:  — 

In  the  Tintt  place,  there  was  an  utter  want  of  all  coercive 
authority  to  carry  into  effect  its  own  constitutional  measurtts.' 
This,  of  itself,  was  sufficient  to  destroy  its  whole  efficiency,  as  a 
auperintending  government,  if  that  may  be  called  a  goremment 

>  Mr.  JnatiM PUtanon,  [n  HjpHoo  ».  Tb*  United Stak%  S  Ddl.  174, afttriMMildiig 
thit  CongiM^  vein  th*  conMantioa,  htd  no  coMdn  Mtlwritr,  lii,  "  tt^quUtiODa 
i)tr«4d«id1*lt«r,  aal«H  tlMSUUl(|(itl»tnfM«i)uldlwbn>aght  iotuaation  jaad  whaa 
Ouejf  mnv  Ux  ■■>»*  niMd  mm  mj  diBpnipittianoL" 

■  I  Manhall'i  Uh  of  VMhingtcn,  Si.  Sea  alw  2  Viik.  lUaL  217  i  Sorth  Anur. 
B«T.  Out  1S97,  pp.  340,  ISI,  SM,  ftSA. 

*  8t«  1  Anwr.  HiMMm,  SiG,  290,  M4,  4S0,  447,  418. 449.  The  Pedtmlirt.  Vtt.  IB 
to  SI ;  S  Aran,  ilateom,  883  ;  M.  S>5,  Ac  ;  8  Anwr.  HuMiim,  Mt«  19 1  U.  fS  ;  Id. 
SMioSM;  [d.S43:  M.  S48,  Ao.;  Id.  849,  Ac  ;  I  Kcnt'i  ComBi.  SH. 

*  1  AnuT.  UDMom,  SS!. 

*  C  MtnluU't  Lib  «f  Vfmhingbm,  68.  *  1  JtffMwa'i  Conwp.  91. 


(a|  Ur.  JelTonan  wm  tit  ofdaioo  tlHt 

Um  MnfedcnUon  rowtiwd  powtn  «f  «o- 

•rcion  liy  niWB*«l  wUdi  th»  oVUffttioM 

of  the  MTer*J  Sutes  might  be  atforecd. 

'  JtSinoa'*  Work*,  IX.  391.    But  m  tnch 

I  tumm,  iT  poMtMcd,  oonld  only  fa*  «x«r- 

dNd  offdnic  tb*  atatao  u  SiUm,  tlio 

pociw  of  ocortiMi   niut  ntCMHrilj  tw 

mA  u   tndffKDdant   notleu  retart  to 

,  iuid«r  rfmUar  cbcmniloaf  a^  tlttt  I*  t«  my, 


tlw  dii^y  or  MtordM  of  MiHIvy  at  aanl 
foSDr^  UMicIfAvmndooaifiaMtiaBof  |rn|> 
nty,  ill*  bjlog  of  tHboigoco  v|ioa  omi- 
nxtot  or  intcnonm^  kc  ;  ind  tho  rrty 
txvituo  of  oBtli  ooereive  outliofitjr,  witli  • 
tiew  to  enfam  tlw  otgMto  of  tba  Dnloo. 
woold  almoit  of  ntwxHy  tmhIi  fa  ita 
orttikro>.  8m  Lib  ud  Vomtfmimm 
ofJunMliodolLU.  198. 


/ 


CH.  rv.] 


DKCLIXK  AMI)   FALL  OP  THB  CONPEDEBATTOS. 


177 


which  poflKued  no  one  Bolid  altril>iit«  of  pon-cr.  It  has  been 
justly  oboerred  that  "a  govcmincnt  atithoriied  to  declare  wer, 
hut  relyins:  on  iiwlppemlont  Htnt^-s  for  the  means  of  proaeciitiiig 
it,  capalilc  of  contrai^liiig:  dolltn,  and  of  )>ledging  the  ptiblic  faith 
for  thoir  pajtncnt,  but  depending  on  thirteen  distinct  sovereign- 
tics  for  the  pruservatifm  of  that  faiili,  could  only  be  niacued  from 
ignominy  and  cimtt-nipt  by  finding  those  aoverpigntiea  adniinis- 
t«rv<l  by  mt-n  exempt  from  the  pasHionii  incident  to  human  na- 
turv."'  That  is,  by  supposing  a  caso  in  which  all  human 
govcrnmcute  would  become  uimcccssan-,  and  all  dliferoneea  of 
opinion  would  beeoine  impo»tible.  In  txutli  Congress  possenad  I ' 
only  the  power  of  recommendation.'  It  dc{)cndcd  aUop.'thcr  upon  I 
the  goo<l-vriIl  of  the  Stat^.'s  whether  a  measure  should  be  carried 
into  effect  or  not.  And  it  can  furnish  no  matter  of  eurprise, 
under  8uch  ei reiiimtanees,  that  great  diffiTi-nces  of  opinion  as  to 
moasurei*  should  have  existed  in  tJic  legislatures  of  the  different 
States;  and  tiiat  n  policy,  strongly  supported  in  sonte^  sliould 
hare  been  denounced  as  ruinmis  in  olbei's.  Honest  and  enlight- 
ened men  might  well  divide  on  such  matters;  and  in  this  perw 
pelnnl  cduttict  of  opinion  the  Htate  mi^it  feel  itflelf  jiiatilied  in 
a  silent  or  o[:>on  disreganl  of  the  act  of  Congress. 

§  2-1!*.  The  fact  corresponded  with  the  Iheory.  Even  during 
tite  Revolution,  while  all  lieartH  and  hands  were  engaged  in  tite 
common  cause,  many  of  tJie  meafturea  of  Congres*  were  defeated 
by  the  inactivity  of  the  States;  and  in  some  instances  tlie  osar- 
cise  of  its  powers  was  n!&ietcd.  But  after  the  iwaec  of  1783, 
such  oppoHJtion  became  common,  and  gradually  extended  its 
sphere  of  activity,  until,  in  tlio  expreseivo  language  already 
i|UDted,  "the  confederatiim  hccjime  a  shadow  without  tlie  sub- 
stance." There  were  no  national  courts  having  original  or 
a(i|>L'llale  jurisdiction  over  cu«ca  rcgunllng  the  pfiwcra  of  the 
Union;  and  if  there  had  been,  the  relief  would  ha>-c  been  but  of 
a  very  partial  nature,  since,  without  sonic  act  of  State  legisla- 
tion, many  of  those  powers  could  nut  )x^  hrouglit  into  life. 

§  360.  A  striking  illuslratiuu  of  thcs«  rcmarlis  may  tie  fwuid 
in  our  juridical  histor}'.    The  power  of  appeal  in  ]>rixe  causes, 

I  E  M>nkiir*  Iir*«if  Wukl^gton.  91.    8m  ilw  I  Rmi'i  Comm.  109 ;  1  EUiM'i 
DtUlm,  »8.  3M,  210.  Sll  )    HoHh  Anar  IUt.  0«t.  IS^,  pp.  tt».  SS7,  «e. ;   Tto 
■  rtiltnli^t.  Jici  IS. 

*  TI.C  Fnlcnlul.  No.  IC. 
vot.  I.  —  IS 


ITS 


HISTOET  OP  TIIK  CONFEDEEATIOK. 


[■ooEn. 


&a  an  incident  to  the  sovurcign  powers  of  pouce  and  war,  waa  as- 
serted by  Congress  after  tlic  most  olabornto  eons i deration,  and 
stipported  bv  tlie  voice  of  t«u  States  antecedent  to  tlio  rutification 
of  tlic  Articles  of  Confederation.'  Tlie  exercise  of  thnt  pow«r 
was,  however,  resiiited  by  the  Htate  cnttrts,  notwithstanding  its 
immcnso  importance  (o  the  pr«»en'ation  of  tlic  rights  of  inde- 
pendent neutral  nations.  I'ho  confederation  gave  in  express 
tenns  this  right  of  appeal.  The  decrees  of  the  court  of  appeals 
Wflre  ©qiially  resisted;  and,  in  fact,  they  remained  a  deJid  letter, 
until  they  were  enforced  by  the  courts  of  the  United  States  imdor 
the  present  ConHtitution.*  (a) 

§  251.  The  Federalist  speaks  with  nmisual  enersy  on  this  sub- 
ject:* "The  great  and  radical  vioe  in  the  con.4tnictinn  of  the 
conff^eration  is  in  the  principle  of  legislation  for  States  or  gov- 
emmonts  in  their  corporate  or  rollective  pjipa<;itics,  and  as  oon- 
tTadisiingiiighed  from  the  individuals  of  wliom  they  consist. 
Though  this  principle  does  not  run  through  all  the  powers  dele- 
gated (o  the  Union,  yet  it  porradcs  and  governs  those  on  which 
the  efficacy  of  the  rest  depends.  Except  as  to  the  rule  of  appor- 
tionmeat,  the  UnittKl  States  bare  an  indefinite  discretion  to  make 
requisitiuiiH  for  men  and  money;  but  they  hare  no  iiuthority  to 
raise  either  by  rcfnilatiuns  extending  to  the  indiridualA  of  Amer- 
ica. The  consciguvncc  of  this  is,  that  though  in  theory  their 
reflolutions  concerning  those  objocla  are  lawa,  constitutionally 
binding  on  the  members  of  Uic  Union,  yet  in  practice  they  are 
m<*r«  recommendations,  which  the  States  observe  or  disregard 
at  their  option."  Again:  " The  concurrence  of  thirteen  distinct 
aovorci<^tie8  is  requisite  under  the  confediTHtion  to  the  complete 
cxwution  of  every  important  measure  that  prociM^ds  from  the 
Union.  It  has  happened  as  was  to  hare  been  foreseen.  The 
mcasui-es  of  the  Union  have  not  been  executed.  Tlie  <)elinqucn- 
cies  of  the  Slates  have,  step  by  steji,  matured  theJiiftelve*  to  an 
extreme  which  has  at  length  arrestt^d  all  the  wheels  of  the  na- 
tionul  irovemment  and  brought  them  to  an  awful  stand.  Con- 
gress at  Ibis  time  scarcely  possess  the  means  of  keeping  up  the 

1  Juunwla  atCmgnm,  Mh  of  Xndi.  177*.  (Ui  roL  fip-  St,  <!&  to  M. 

*  Pinhallow  r.  Doann.  3  D>IL  SI  ;  <.^na(i  r.  Jginiaji,  4  Cniich,  S. 

•  Tlu  Ftdtnlid,  Nol  is.  Sm  >ln  1  JiHutwm'i,  Comqi.  S3  ;  PmMwit  Modtm'^ 
Vmmk*  et  U*j,  ISUt :  1  ftdnc'*  Bhck.  Ctmm.  App.  aota  D.  piimlm. 

(«}  Sra  iiot«  to  t  <1'>  '"'*• 


CU.  IT.]         DECUNR   AXD   FALL  OF  THE  COXFIH^ESATIOK. 


1T9 


forms  of  admin iBtrfttion  till  the  States  can  have  time  to  agree 
upon  a  more  substantial  siibBtitutc  for  the  present  shadow  of  a 
federal  gorenunvnt " 

§  252.  A  further  illnstratjoD  uf  this  topic  may  be  gathered 
from  the  palpable  defect  iu  the  coufi.'dcratiuii  of  any  power  to 
give  a  wanctiau  to  its  Iaws.>  Cougress  had  no  power  to  exact 
oUnlienoe,  or  punish  disobedience  to  its  ordiuances.  Ther  could 
neither  impose  fines,  nor  direct  imprisonment,  nor  divt-st  privi- 
leges, nor  declare  forfeitures,  uor  suspend  refractory  officers. 
There  was  in  the  confederation  no  rrprtK*  authority  to  exercise 
force;  and  though  it  might  onlinarily  lie  implied  as  an  incident, 
the  right  to  make  such  implication  was  prohibited,  for  e««b  State 
was  to  "retain  every  power,  right,  and  jurisdiction  not  expre»My 
delegated  to  Congress."'  The  consequence  naturally  was,  that 
the  resolutions  of  Congress  were  disregarded,  not  only  by  States, 
but  by  individuals.  Men  followed  their  intercHts  more  than 
their  duties;  they  cared  little  for  persuasions  which  came  with- 
out force,  or  for  reoommoudatiuns  which  ap[iealed  only  to  their 
consciences  or  their  patriotism.^  Indeed,  it  seems  utterly  pre- 
posterous to  call  that  a  government  which  has  no  power  to  pass 
laws;  or  those  enactments  laws,  which  ore  attended  with  no 
Banctinn,  and  hare  no  penalty  or  punishment  annexed  to  the 
dianhedience  of  them.' 

§  2^'i.  But  a  still  more  striking  defect  was  the  total  want  t& 
power  to  lay  and  levy  taxes,  or  to  raise  revenue  to  defray  the 
ordinary  expenses  of  government*  The  whole  power  conlided  to 
Congress  upon  this  bead  was  the  power  "to  ascertain  the  simu 
Decessory  to  bo  raised  for  the  ser^-ice  of  the  United  Stales,"  atul 
to  apportion  the  Cfoota  or  proportion  on  escli  State.  But  the 
power  was  expressly  reserved  to  the  States  to  lay  and  levy  the 
taxes,  and  of  course  the  time  as  well  as  the  mode  of  payment 
was  extremely  uncertain.  The  eWls  resuUing  from  this  source, 
even  durinii  the  R<.'viilutionary  War,  were  of  incalculable  extent;' 
,  Kod,  but  for  the  good  fortune  of  Congress  in  obtaining  foreign 

>  I  lUaf  I  CMBm.  SCO. 

*  Tb>*r«l(nlia.No.si. 

*  YkW'i  tliiiDiu,  1  EUiot'i  Deb.  84. 

*  The  FodmlUt.  Ho.  IG  |  1  K«t,  Connt.  300.  901. 

*  Soela  1  D.B.U«*(Biarsn  k  Dune's  nL).  pfi.  U  tn  f  I.  tbe  pnCNdi^*  of  Ibo 
old  Can|[nM  «n  lht«  iulij,«t.  Sm  abo  The  Fcdenlbl,  Ko.  Zl  ;  1  Tuckn*!  Black.  Coinn. 

'  XU  to  33« )  Tim  FxUmtbit,  Not.  K,  33. 

*  5  Uanl>U'«  Ufe  of  WmUi«Uoi,  M  i  I  Kam.  Usimuii,  MS. 


180 


HI8T0BT  OP  TBE-CONPEDEBATIOK. 


[book  n. 


lowis,  it  is  far  from  being  certain  tliat  tliey  would  not  have  been 
fatal.1  Tlie  princi|(le  which  formed  the  basis  of  tlie  apportion- 
ment was  siiRicicntlv'  objortionable,  as  it  took  a  standard  ex- 
tremely unequal  in  its  operation  uj>on  U»o  different  States.  The 
ralue  of  its  lands  was  hy  no  mfUis  a  just  reprCBeututivo  of  the 
proportioniitc  coutn  but  ions  vrbieli  eaeh  >^tate  ought  to  make  to- 
wards tbti  dischar^  of  llie  common  bunlens.' 

§  2^4.  But  tliis  consideration  dinks  into  utter  in^igtiiGcance 
in  comparison  with  others.  Iteiiuisitioos  were  to  be  nuidc  upon 
thirtc«n  indcpi-ndoiit  States,  mid  it  depended  upon  the  good-will 
of  the  legislature  of  each  State  whether  it  would  comply  at  all; 
or  if  it  did  comply,  at  what  time,  and  in  what  niaiuier.  The 
very  tardiness  of  such  an  operation,  in  Uie  ordinary  course  of 
things,  was  sulficient  to  involve  the  government  in  ])erpetiial 
financial  embarrassments,  and  to  defeat  many  of  its  best  meas* 
ores,  even  when  there  was  the  ntmont  good  faitli  ond  prompti- 
todc  on  the  juirt  of  the  fitatcfl,  in  complying  with  the  re<iui9ition8. 
fitit  ntany  reasons  concurred  to  produee  a  total  want  of  prompti* 
tudo  on  the  part  of  the  ■'^tatf-A,  and,  in  ntimerou«  instances,  a 
total  disregard  of  the  rc<)uit4ilion!i.*  Indi^d,  from  the  moment 
that  the  peace  of  178^  secured  the  country  from  the  distressing 
calamities  of  wnr,  a  gf^nera)  relaxation  took  place;  and  many  of 
tiie  States  successively  found  ajiologies  for  Uieir  gross  neglect  in 
evils  common  to  all,  or  complaints  listened  to  by  all.  Many 
solemn  and  affwting  apptraln  were  from  time  to  time  made  by 
Congress  to  tlie  States,  but  they  were  attended  with  no  salutary 
effect.*  Many  meoMires  were  devised  to  obviate  the  difficulties, 
nay,  the  dangers,  which  threatened  tho  [Tnimi;  but  Uiey  failed 
to  produce  any  amendments  in  the  confederation.^  An  attempt 
wns  made  by  Congress,  daring  the  war,  to  procure  from  the 
States  an  authority  to  levy  an  impost  of  five  per  cent  upon  im- 
p(irted  and  prize  goods,  hut  the  assent  fif  all  the  States  could  not 
be  procured.*    The  troasory  was  empty,  tho  credit  of  tlie  confed- 

I  S  Pitk.  niM.  1S8,  ISS.  160.  les ;  ]  TnckM'a  Black.  Comm.  App.  ttt.  StS  to  9M  ; 
1  IT.  S.  Uwi,  87.  St. 

*  Tbe  Fcdcnlbt.  Hoa.  31.  30. 

*  S  Pllk.  nut.  IM,  1ST.  Sm  kiM  lt*ni»ilu  n(  rnttmon.  J.,  In  Byllon  «.  tT&SUd 
SMa,  3  IMI.  171  ;  1  F.Iliat'i  IMmtM.  906  ;  Tb*  I'olcnlbt.  K<».  21.  31. 

*  Sm  1  U.  S.  Law*  IBhmai  A  thmm'i  nL  1811).  from  tage  ST  lo  54. 

*  5  ManhtU*  Ub  of  Wathitwton.  pp.  SS,  30,  37. 

*  S  Uanhall'a  UU  «d  Wuhio^loii.  37  :  Jooi.  of  Cnacrttn,  Id  Fob.  1781.  ^  9»  i  U. 
l«!h  D«.  1788,  p.  »5  J  I.L  asth  April.  I7BS.  pp.  184,  803 


CB.  IV.] 


DECUKG  AKD   PALL  OF  TBS  CONFEDERATION. 


181 


cmcy  WR8  Buiik  to  a  Invr  «)>li,  the  public  burdens  vera  increaAinfr, 
and  Uie  public  faith  wait  prostrate 

§  266.  Th«ite  general  reniarkt)  may  be  easilj  rrrificd  by  an  ap- 
peal to  the  pulitie  acts  and  hi.ttorr  of  the  limes.  Tlio  cluee  of 
tlio  Revohition,  iutlcftend^nt  of  the  enoniintis  lo«geg  occasioned  hy 
the  excessive  issue  uod  circulation,  nnd  oonaeqitent  depreciation 
of  paper  money,  found  the  country  burdened  with  a  public  debt 
of  upwards  of  forty-two  milliuiis  of  dollars ; '  (a)  eight  millionH  of 
which  were  due  for  loans  obtained  in  France  or  Holland,  and 
the  remainder  to  our  own  eitisenE,  and  principally  to  thoae  whmie 
bravery  and  jtutrJotism  hud  saved  their  country.'  CongroaB,  con- 
scious of  its  inability  to  discharge  even  the  interest  of  this  debt 
by  its  existing  means,  on  the  ]'2th  of  Februun,-,  178S,  resolved 
that  the  ci«tablishiu«nt  of  permanent  and  ade(|iuitc  funds  or  taxes 
or  duties  throughout  tlie  United  States  wns  indispcnsablo  to  do 
justice  to  the  public  creditore.  On  the  ISth  of  April  following, 
after  much  debate,  a  resolution  was  passed  recommending  to  the 
States  to  Test  Congress  with  power  to  levy  certain  S]>eciried  diilies 
on  spirits,  wines,  teaK,  pepiier,  sugar,  molasses,  oocns,  and  coffee, 
and  a  duty  of  five  per  cent  ad  tfalorrm  on  all  other  imported 
goods.  These  duties  were  to  continue  for  twenty-liv«  years,  nnd 
wero  to  be  applied  solely  to  the  payment  of  the  prineip«l  and 
interest  of  the  public  debt,  and  were  to  be  collected  by  oflioers 
ettosea  by  tlio  Slates,  but  removable  by  Congress.  The  States 
were  further  required  to  establish,  for  the  same  time  and  object, 
other  reremies,  exclusive  of  the  duties  on  imports,  aecording  to 
tlin  proportjou  settled  by  the  confederation;  and  the  system  was 
to  tttlte  effect  only  when  the  consent  of  all  the  States  was  obtained." 

I  256.    The  measure  thus  adojited  was  strongly  urged  upon  the 


'  Tbe  wMe  exfiitm  of  the  nur  vu  mllmaUil  M  ISS  inilUaiM  cl  dolbn,  iaetudinft 
iha  apvcii)  talno  or  all  tcouuiy  bUlaaftliE  UiiiiHl  Stains  mliicalacMrdiiiK  toUi*Mal« 
«f  dqirwiatioti  ntabliabnl  liy  Cougma.     3  Pitk.  HisL  ISO. 

*  i  P\ik.  HItl.  ISO ;  S  Hanh.  Uh  el  Wiuli.  34. 

*  iVnk.  UiaL  ISO,  ISI  :  i  HBnk.Llf(>arVi'wli.)S.K;Joiinial«cf  CongrM,  Illh 
F*ti.i;83,p.tM;  td.  3Dtb  Uanh.  1783,  pp.  ISl.  IST.IU,  IW;  U.  ISlti  April.  1753, 
fp.  185  to  I».  Ad  BtUrapt  «r>i  n)|jH>iiiFn  It;  nMde  in  C^togiTM  l«  inwaic  auUiorilv 
to  levjr  th«  luMlor  Ui*  ruloii  arjiantolf  rron  otW Slate  Uxm  |  auil  to  make  tliicol- 
iMtMiliaUstoin  tiM<Tiiii«n  by  Uw  tiMMNTorUadapaty,  nadar  thedintftionoTCon- 
umn,  Bat  the  mitmn  Guled  ol  trctf Ting  tlw  rata  ef  Con)[i*M  Itattf.  S  Uaiih.  Lift 
U  WaablngtoD,  SS,  note 

^)  Skwtt,  Lifoof  HadiMn.  lU.  73. 


182 


H13T0nY  OP  THE  COKPBDBUTION. 


[mokh. 


states  ID  an  address,  drawn  up  under  the  aiiUiority  of  Cuugress 
by  Kom«  of  our  most  dislingiibhed  statesmen.  Whoever  reads 
it,  OTCU  at  this  distance  of  time,  will  be  stnick  with  tlie  force  of 
its  stj-le,  tlie  loftiness  of  Its  sentiments,  and  tlie  unansw«i-able 
reasoning,  bv  which  it  sustained  this  appeal  to  thn  justice  and 
patriotism  of  tJie  nation.'  It  was  also  recommended  by  Wash- 
ington in  a  cireiitar  letter  addressed  to  tlie  governors  of  tbe  sev- 
eral States,  availing  himself  of  the  approaching  resignation  of 
his  public  command  (o  impart  his  farewell  advice  to  bis  country. 
After  having  stated  that  there  were,  in  his  opinion,  four  things 
nasential  to  the  wellbciug  uud  existence  of  the  United  States,  as 
an  independent  power, — namely,  1.  An  indissolublo  onion  of 
the  States  undi-r  one  Federal  head;  2.  A  sacred  regartl  to  public 
justice;  3.  Tlic  adoption  of  a  proper  peace  establishment ;  4.  The 
provalenoo  of  a  pacific  and  friendly  disposition  of  the  people  of 
the  United  States  towards  each  other,  — he  proceeded  to  discuss 
at  large  the  fimt  three  topics.  The  following  paasago  will  at 
one«  disclose  the  depth  of  bis  feelings  and  tlio  extent  of  bis 
fean:  *'UiJess  [said  he]  tlie  Htates  will  suffer  Congn-ss  tocxer- 
vise  those  [irerogalives  they  are  undoubtedly  invested  with  by  the 
Cunstitulion,  eren'thing  must  Tcry  rapidly  tend  to  anarchy  and 
confusion.  It  is  indispensable  to  the  happiness  of  the  individual 
StatM  that  there  should  Iw  lodged  somewhere  a  supreme  power 
to  r^iulatu  and  go^'cm  the  general  concerns  of  the  coufederated 
republic,  without  which  the  Union  cannot  bo  c^  long  duration. 
There  must  be  a  faithful  and  pointed  oontplianoo  on  the  part  of 
overy  ^laie  witli  tlie  late  proposals  and  demands  of  Congress,  or 
the  most  fatal  eonsequenoes  will  ensue.  Whatever  measures  have 
a  tendency  to  dissolve  the  Union,  or  contribute  to  violate  or 
lessen  tlie  flovcreipn  authority,  ought  to  be  considered  hostile  to 
the  liberty  and  independence  of  America,  and  the  antlioni  of  them 
treated  nfconlingly.  And,  lastly,  unless  we  can  be  enaldod  by  the 
coneurreuce  uf  the  Statos  to  participate  ol  the  fniitA  of  the  Rev- 
olution, and  enjoy  the  essential  benefils  of  civil  society  ondcr  a 
(orm  of  goveniiiii^'nl  so  froo  and  uncomipted,  so  happily  guarded 
against  the  danger  of  oppression,  as  hue  been  devised  by  the  Ar- 
ticles of  Confederation,  it  will  bo  a  subject  of  regret  that  so  much 
blood  and  treasure  have  been  lavislied  for  do  purpose;  that  so 


>  1  IHtk.  Hbt  ISl.  1S3 ;  S  Mmnk.  LiU  at  WmIi.  S3,  38,  ». 


CB.  IV.]         DBCLIh'B  AKD  PALL  OP  TOE  00NPtU)EBi.T10N. 


163 


manj  •iifTcriiigs  hare  been  encountered  without  cooipcitsation ; 
uid  that  80  many  sacrifieeit  have  bix-ii  made  iu  vaiit."* 

$  257.  Notvitlistanding  the  wanntb  of  this  appeal  and  tlie  ur- 
gencf  of  the  occnAioii,  the  mewiire  was  never  ratified.  A  jeal- 
omy  began  to  e:[i.it  Ix^twcen  the  State  and  fteneral  goTemnvoDtH;' 
and  the  State  iutercsta,  aa  might  naturally  be  presutoed,  pre* 
dotninatud.  Some  of  th*'  States  ada])ted  the  wsolution  aa  to  the 
iinpuHlft  with  promptitude ;  others  gave  a  slow  and  lingering  aa- 
siiit ;  and  uthera  held  it  under  adviaement'  Id  the  mean  time, 
Oongn^iM  was  obli^^  to  relr,  for  the  immediate  supply  of  the 
treasury,  upuu  rcquiftitioiui  annually  made  and  annually  n«K- 
lcctc<L  The  requiatliona  for  the  payment  of  the  interest  upon 
the  domestic  debt,  from  1T82  to  1786,  amounted  to  more  thaDj 
six  millions  of  doilara;  and  uf  this  sum  up  to  March,  1787, 
about  a  miliioa  only  was  paid;'  and  from  November,  1784,  to 
Janiiari',  17^<>,  four  bundre<i  and  eiglity-thre*  thoutMtnd  dollani 
only  had  been  received  at  the  national  treasury.*  But  for  a  tern- 
poraiy  loan  negotiated  in  Holland  there  would  have  i>cen  an  utter 
prostration  of  the  government.  In  this  state  of  thinga  the  value 
of  the  domestic  debt  sunk  doim  to  about  one  tenth  of  ita  nominal 
auiuuiit.^ 

§  268.  In  February,  1786,  Congress  detemnined  to  make  an- 
other and  last  appeal  to  the  States  u|>on  the  subject.  Ilie  rejiort 
adopted  upon  tJiat  occasion  oontikins  a  melancholy  picture  of  the 
state  of  the  nation.  **  In  the  course  of  this  inquiry  [said  the  re- 
port] it  moot  elearly  appcarf^d  that  the  rec|i]iaitiona  of  Congreaa 
for  eight  veal's  past  have  bei^n  so  irregular  in  their  operation,  M 
uncertain  in  their  coltection,  and  so  endently  unproductive,  that 
a  relianee  on  them  in  future,  aa  ft  aource  from  whcnif  immeya 
are  to  bo  drawn  tu  disvhar^  th«  onuiagenients  of  the  coufMera- 
tloo,  derinitu  as  they  arc  in  time  and  amount,  would  bt  no  Uu 
ditkonorahU  to  llie  utuJtrttaHtiinift  of  thoK  who  enUrtatned  sutfj 


>  E  M*nh.  UholVaih.  IS,  47.  48;  S  Piik.  HM.  SIS,  Sir.  Sm»1m  lAnwrlcui 
HiuMim,  IfiS  la  IU,  Hr.  Fftukney'*  tpotdt.  S«  aUo  1  K«nl,  CsUM.  Lact.  10,  pp.  Sit 
li)S47(ftl«JlUnB). 

*  JaunuU*  of  Cmwnw,  int,  p.  S4.  Sm  dw  S  AnmlMii  Momvh.  113.  Tha 
lUfott  orxaauntUmofCaagnMoriholith  «f  Ttttway,  175S,  oanuin*  •  daUlbd 
■titmimt  o/  Uw  uta  «f  tb*  8UMb  nlaltTe  U  Uw  nsMOM.  Joor.  oT  VtMfftm,  IIH. 
p.  It;  I  AmM.  MaMinB,!tSli  S  Abmt.  Uaumm.  153  la  ISO. 

*  S  r-itk.  KUL  lU.  «  ft  HudL  Life  of  WMb.  XL 

*  ll'iUi.  Ilia.  I6S. 


184 


HISTOItT  OP  THK  CON  FED  £B  ATI  OH. 


[BOOK  n. 


confidence,  than  it  would  be  daa^rous  to  the  voUsre  aiid  peace 
of  th«  Union. "  "  It  has  become  the  duty  of  ConRresa  to  d(M.-lare 
most  ospUcitly,  thut  thu  crisis  has  arrived,  when  the  people  of 
these  Uuited  States,  by  whoso  will  and  for  whose  benefit  the 
fedcrul  government  wua  instituted,  miuit  decide  whether  they 
will  supfMri  their  rank  us  u  nation,  by  maintaining  the  public 
faith  at  home  or  abroad ;  or  whether,  for  want  of  a  tltiurly  I'.ter- 
tion  in  cstablii^hiiig  n  general  rovciiiie  and  thereby  giving  etrciigtb 
to  the  confederacy,  they  will  liaxard  not  only  tlic  oxi»lcnco  of  the 
Union  but  of  thows  great  and  iiivaliutlde  privileges  for  which 
they  have  eo  arduously  and  so  honorably  contended. " '  After 
the  adoption  of  this  report,  three  States  which  had  hitherto 

LStood  aloof  came  into  the  nieaiiiirc.  Xew  York  alone  rcfuHml  to 
comply  with  it;  and  after  a  iii<u«t  animated  debate  in  her  legis- 
lature, she  remained  inflexible,  and  the  fate  of  the  measure  was 

tflcaled  forever  by  her  solitary  negative." 

_  250.  Independent,  however,  of  this  inability  to  lay  taxes  or 
collect  revenue,  the  want  of  any  power  in  Congress  to  regulate 
foreign  or  domestic  commerce  was  deemed  a  leading  defect  in 
the  confederation.  'Iliis  evil  was  felt  in  a  com)>arativety  slight 
legrec  during  the  war.  But  when  the  return  of  jKaoe  restored 
the  conntry  to   its  ordinary  commercial  relations,   tlie  want  of 

■  come  uniform  s\'stem  to  regulate  them  was  early  jwrccived ;  and 
lie  calamities  which  followed  our  shipping  and  navigation,  our 
domestic  as  well  aa  our  foreign  trade,  convinced  the  reflecting 
that  ruin  impended  upon  these  and  other  vital  interests,  unless  a 
national  remedy  could  be  devised.  We  accordingly  find  the 
public  papers  of  that  period  crowded  with  complaints  on  thiii 
suhjtM^  It  was,  indeed,  idle  and  visionary  to  suppose,  that 
while  thirteen  independent  States  possessed  the  exclusive  power 

1  JMniiita  oT  CW«S  1730,  pp.  M  to  S6  ;  1  Amer.  KmniiN.  3$3,  to.  The  Com- 
niltM  wbo  inkd«  >)ie  Report  wne  Ur.  Kin^  Mr.  PinclcDcy,  Mr.  Kcut,  Hr.  Hooroe, 
ud  Ur.  P*tlit. 

*  aPitk.  HkL  lU.  133:BUM«h,  Ufi;  of  WMliInKUw.M.  et.131i  1  Tuck.  BIm^. 
A\^  lis.  Tha  *p*«ch  lit  Cnkmsl  riainiltiiB,  titra  in  tho  ItisUtlnuB  of  Vet  Yotfc,  ia 
FtJnuKTf.  1787,  conlaiu*  •  vary  pMTfffuJ  arxiuiient  in  raror  of  tli»  impoM  i  ukd  k  ilati^ 
niBiit  of  Ike  cxUvt  to  which  «Mh  of  tk>  &Ut«*  hul«ainpli«l<'itharRrt»Hltliat<i|«!)a- 
tionnnrCoiigraM.  [>nrili||th*panfln  ynt*,  be  my%,  Krw  H>nt|iilutv.IIoirt)iCaivltiia. 
tioaA  Cuntia*.  (nd  Owon^  had  paid  bntliitiK ;  Onanwtkiil  «tid  D>Ur>rv,  abnot  one 
llilid ;  llMMtchtuettn,  Bhoia  Uhuid,  Mid  Muryluid,  aboot  ou*  half ;  Vir^iila.  Ihrao 
cniiB  :  P<Bn«y1*aiua,  mm-  tba  «bola  i  aad  He*  Yotfc,  mon  than  btr  qaoU.    I  Amer. 


CH.  IV.J  DKCUHB  AND  FALL  OP  TRB  CONFEDERAnOK. 


185 


of  regulatinjf  coramprc*',  thflre  cwild  bo  found  any  uniformity  of 
HVHteiD,  or  any  lisirmouy  and  co-oiwi-atiou  for  the  general  welfare. 
Meaflur«8  of  a  cummcrc-inl  nature,  which  were  adopted  iq  one 
State  from  a  sombc  of  ita  own  intert-HtH,  would  bo  often  counter- 
vailed or  rejected  by  other  fjtates  from  similar  motives.  If  one 
State  shiHild  deem  »  nangation  net  favorable  to  ita  own  (growth, 
the  eflicacy  of  such  a  inoaaure  might  be  defeated  by  the  jealousy 
ur  poller  of  a  m-i^hboring  State.  If  one  should  levy  dulien  to 
maintuin  ita  own  frovemmcnt  and  rt-jiourccs,  there  were  many 
temptations  fur  its  neighbors  to  udujit  the  n^ittcm  of  free  trade, 
to  dnw  to  itttelf  u  larger  tiliaro  of  foreign  and  domestic  commerce. 
The  agiricultural  Htatefl  might  easily  suppottc  that  they  had  not 
an  C({Mal  interext  in  tho  restrictive  system  with  the  naviguting 
State*.  And,  at  all  events,  each  State  would  legislate  according 
to  its  estimate  of  ita  own  interest)*,  the  importance  of  its  own 
prodtKts,  and  the  local  advantages  or  disadvuntagcs  of  its  posi- 
tion in  a  ]>olitieal  or  commercial  view.  To  do  otherwi»«  would 
be  to  aacrilino  ita  immediate  interests,  without  any  adei^uale  or 
enduring  consideration ;  to  legislate  for  others  and  not  for  itself; 
to  dispense  blessings  abroad,  without  r^^arding  the  security  of 
tfaoftC  at  homo.' 

§  200.  Such  a  state  of  things  nec«)«arily  gave  rise  to  serious 
dissensions  among  the  Slates  themselves.  The  difference  of 
regulations  was  a  perpetual  source  of  irritation  and  jealousy. 
B«al  or  imaginary  grievances  were  multiplied  in  every  direction; 
and  tlius  State  animtjsities  and  local  prejudices  were  fostered  to 
a  high  degree,  so  as  to  threaten  at  once  the  peace  and  safety  of 
the  Union.'    Like  evils  existed  in  our  colonial  state.* 

$  261.    These  evils  were  aggravated  by  the  situation  of  our  for- 

'  N(W  Jmej  Mrlr  Mt  Ihu  wtDt  of  a  |nwrr,  in  Cawgrwii  lo  n^Iala  foniga  oom* 
mem.  and  mile  it  ona  of  bcc  ot^mlions  t»  MlopUag  UiB  Attidn  of  Caottdtntkn,  la 
hor  NjmMnbitiiM  l«  Oomgnm.  fi  Piifc.  Hut.  33,  St  i  t  Swret  Jonra.  3f  ft  ;  The  PkI- 
•nOrt,  Kd.  39. 

*  3  Filk.  HUl.  in,  214,  !15  ;  1  Am*r.  Mujtaat.  27%  27S,  !S1,  2SS,  SS8  :  The 
r«l«nlil^  NcL  S3  : 1  AiMf.  Mua.  13  to  1« ;  S  Ann*.  Um.  9W  to  3S»  ;  TI»  FedtnIK 
Xo.  r  1  I  EUioc'i  PcUtc^  n  :  1  Tncktr*!  BUek.  Omtm.  App.  1S9,  SIS.  2t».  Ham. 
TurgM,  tb*  coB>f4ra11cr.|^ncraI  of  i)m  Anuice*  nf  Ftbdc*,  aoMnn  nthtr  «nvn  la  oiu 
Utiou]  poUcT,  (ib<Mv«l,  llwt  la  lli«  arrenl  SMm  "  one  fiml  principk  U  eatiUiibfil 
in  n^itl  to  irapmti.  Each  Stata  b  rappoanl  U  b«  at  libsrly  to  tax  itwlf  at  (dniuut, 
and  to  lay  ita  laiui  apon  ]Kt«o«^  oonnnnpUoni^  nr  bnpMiatMiiu  i  that  ti  to  mj,  b 
»rtel9mi»UrtdeB»lraryUtiiato/«llitrSUIiu.''     I  Aniar.  llainim,  IS. 

■  SOtahaB'i  HiiL  ^px.  4*8,  IIW. 


186 


HiaiOBT  OP  THE  OOKFEDEBATIOIT. 


[BOOKH. 


eign  commerce.  During  the  war,  o«r  commerce  wn*  nearly  an- 
nihilated hj  the  superior  naval  power  of  the  enemy;  and  the 
return  of  poace  enabled  foreign  nations,  and  vspociuUy  Great 
Britain,  in  s  j^reat  measure  to  monopolize  all  the  lx.-»ufits  of  our 
homo  trude.  In  the  (inst  piucv,  our  unvi)ititiuii  huviiig  uu  pro- 
toctiun  wua  unable  to  cdki^  iii  competition  with  foreign  ghips. 
tn  the  next  pltioe,  our  siipplica  were  almost  altogether  furuished 
by  foreign  iniporter8  or  on  foreign  account  We  were  almost 
flooded  with  foreign  mauufactures,  while  our  own  produce  bore 
but  a  reduced  price'  Jt  was  easy  to  foresee  that  such  a  state  of 
things  must  soon  absorb  ail  our  means,  and  as  our  industry  had 
but  a  narrow  ftco])e,  would  soon  reduce  us  to  absolute  poverty. 
Our  trade  in  our  own  ships  with  foreign  nations  was  depresaed  in 
an  equal  degree;  for  it  was  loaded  with  hcitvy  restrictions  in  their 
ports.  While,  for  inalance,  British  sliipti,  with  their  commod- 
ities, had  free  adniission  into  onr  porta,  American  Bhi|is  and  ex- 
ports n-cre  loaded  with  heavy  exactions,  or  prohiliitod  from  entry 
into  Uritish  porta.^  We  were  therefore  the  victims  of  our  oa-n 
imbecility,  and  reduced  to  a  complete  subjection  to  the  commer- 
cial regulations  of  other  countries,  notwithstanding  our  boasia  of 
freedom  and  independence.  Congress  had  ixivn  long  sensible  of 
the  fatal  effects  flowing  from  this  source;  but  their  efforts  to 
vard  off  the  misehiefs  hud  b<>eQ  unBUcccsHfuI.  Being  invested 
by  the  Articles  of  Confederation  with  a  limited  (>owor  to  fonn 
commereiu)  treaties,  they  endeavored  to  treat  with  foreign  pow- 
om  upon  principles  of  reciprocity.  But  these  iiegotiuliniis  wore, 
as  might  be  anticipated,  unsucoossful,  fur  tl>e  parties  met  upon 
very  unequal  terms.  Foreign  nations,  and  especially  Qreot 
Britain,  felt  secure  in  the  poascssion  of  their  present  command 
of  our  trade,  and  liud  not  the  least  induoemctit  to  part  with  a 
single  advantage.  It  was  further  pressed  upon  us,  with  a  truth 
equally  humiliating  and  undeniable,  that  Congress  possessed  nu 
effectual  power  to  guarantee  the  faithful  observance  of  any  oom- 
mCKial  rej^ulations ;  and  there  must  in  such  cases  be  reciprocal 
obHgutious.*  "America  [aaid  Waahingtonj  must  appear  inarery 

1  S  Hanb.  Uln  at  WadtingtaB,  «9,  72,  75,  70,  SO. 

•  I  Tuek.  Bhnk.  App.  167,  t» ;  5  Manb.  Uh  of  W«.li.  77.  78 1  «  Ptlk.  HW.  ISC 
t»  IBS  i  1  Anvrr.  Mmniid.  SS2.  SSS  i  a  Ann-.  Uomiw^  SSS  to  27« ;  Id.  S71  U>  SfS ;  S 
Asm.  Hvmmm,  »l  laU7. 542 ;  Herth  AnMrima  lUriew.  Oct.  tiS7,  fju  S49, 357.  ISA. 

*  SHankLifeof  Wuh.7l,T3;TS;  S  Fitk.  Uut.  ISII,  IK) ;  »  Asm.  MoKnna,  «t 
81,  6S. 


CH.  IV.]  DECLINE   AND   PALL  OF  TBI  COKPKDEEATION. 


187 


contemptible  point  nf  view  to  thotw  witli  whum  she  una  cndcaror- 
ing  to  form  commercial  treaties  without  poesessing  tlic  iuv«n&  of 
carrying  them  into  effect  Thcjr  must  sec  and  feel  that  the 
Union,  or  the  States  individually,  are  Rovereign,  as  \>Qnt  giiita 
their  purpoeea.  In  a  word,  that  wo  arc  a  nation  to-day,  and 
thirteen  to-morrow.     Who  will  treat  with  us  on  auch  terms  ?  "  ' 

§  262.  The  difficulty  o(  enforcing  even  the  obligationa  of  the 
treat}-  of  peace  of  1783  waa  a  most  aorioua  national  evil.  Great 
Britain  made  loud  complaints  of  infractions  thereof  on  the 
of  the  several  Slates,  and  demanded  i-edreaa.     She  refused 

'on  account  of  theao  alleged  infractions  to  surrender  up  the  west- 
eni  ports  according  to  the  stipulations  of  that  treaty;  und  the 
whole  confederacy  was  coiiaecjuently  threatened  with  the  calam- 
ities of  Indian  depredations  on  tho  whole  of  our  weslcra  borders, 

^id  was  in  dan)^-r  of  having  Its  public  peace  subverted  through 
its  mere  inability  to  enforce  Uio  treaty  Btipittatious.  lite  cele- 
brated ftddre»»  i)f  Conj^rvss,  in  1787,  to  the  seroral  States  on  this 

Nubjeet,  is  replete  with  admirable  roisoning,  and  contains  melan- 
choly proofs  of  the  utter  ineflicicncy  of  the  confederation,  and  of 
the  disregard  by  the  States  in  their  legislation  of  the  provisions 
of  that  tivaty.>(a} 

§  268.  In  April,  1T84,  Congress  passed  a  resolution  requesting 
the  States  to  vest  the  gi^neral  guveniinent  with  power,  for  fifteen 
years  only,  to  prohibit  the  importation  and  exportation  of  goods 
in  the  ships  of  nations  with  which  we  had  no  commercial  treat- 
ies; and  also  to  prohibit  the  subjects  of  foreign  ilatioiis,  unless 
authorized  by  treaty,  to  import  any  goods  into  tJio  United  States, 
not  the  prodoce  or  manufacture  of  the  dominions  of  their  own 
BOrereign.  Although  Congress  expressly  stated,  that  without 
such  a  power  no  reciprocal  ad^nLntngea  could  be  acquired,  tlie 
proposition  K-as  never  assented  to  by  tlio  Htates;  and  their  own 
Cotutervailing  laws  wcro  oitlier  rendered  nugatory  by  the  laws  of 

>  e  Hank  LUb  nf  Wuh.  73 1  North  AnNtkan  TUiUm,  OdL  1837,  jip,  357,  2» ; 
'  Xtchnaii'i  Coll.  of  BtforU,  f.  SS. 

*  Jnurnib  of  CSMwna*,  April  13.   1TS7,  p.  3t;  lUvl*  m  CoMllMlka,  An<. 3; 

,p.8l&    It  wu  ilnwn  ap  bf  Mr.  Jaf.tbon  SecivUr]t<d  FarrijiB  ASun,Md««i  anial- 

kanaiuly  kdoftod  hf  Co^ctm.     It  howtVM'  fUlod  of  il>  otjfst.     And  tli*  tmtf  <>(  17S3, 

^•o  Gu  M  k  rmptcUd  BrflUi  doliU,  ma  D«T«r  UtMiilly  «xe«itnl  uDtU  i/tn  tbs  tO/^p- 

Um  or  Uiu  CoDHlitiltloD  of  Uia  CniWd  8UU«.    Sf*  Wan  ».  UylUoi.  8  DalL  B.  IW  | 

HopUa*  K  B«ll,  8  Cnuck.  4H. 

(a)  Bit«^IJfaiiriladiMH,ll.lO.«li^ 


1S8 


BIffrOBT  OF  TUK  CON'FKSKELATION. 


[book  II. 


other  States,  or  WAi-e  r<>pcal<!<!  liy  a  regard  to  their  own  intprestfl.' 
At  a  still  later  period  a  resolution  was  moved  in  Oon}7r«tui,  rec- 
ommending it  to  the  States  to  veet  in  the  geiKral  giovenuneot 
full  authority  to  reflate  external  and  internal  commei-ce  and  to 
impose  such  duties  as  mi^ht  bf  ntx-ctuiurv  for  the  purpose,  which 
shared  even  a  more  mortifying  (ate;  for  it  waa  rvjcoted  iu  that 
body,  although  all  thv  duttc-s  were  to  be  coll«ct«d  by  and  paid 
over  to  the  States." 

§  26i.  Various  rcaaona  concurred  t«  produce  th«ao  oxtra- 
ordinury  results.  But  thv  leading  caiuo  was  a  growing  jcaloiiHv 
uf  the  gt;ueral  guvi-rumcnt,  and  n  more  dovut<.-d  attacliiuent  to  the 
local  interests  of  the  States;  a  jealousy  which  soon  found  its 
way  even  into  the  councils  of  Congress,  and  ener^'atcd  tJie  Utile 

jKiwcr  which  it  was  yet  suffered  to  exert     One  memorable  in- 
occurred,  when  it  was  expected  thai  tlic  British  garriflons 
rould  surrender  the  western  pottts,  and  it  was  thought  necessary 

'to  provide  some  regular  troops  to  take  possession  of  tJiem  on  the 
part  of  America.  The  power  of  Congress  to  make  a  requisition 
on  the  Slates  for  this  purpose  was  gravely  contested;  and,  aa 
connected  with  the  right  to  borrow  money  and  emit  hills  of  credit, 
was  asserted  to  be  dangerous  to  liberty  and  alarming  to  tlie 
States.,  llie  measure  was  rejected,  and  militia  were  ordered  in 
their  stead.* 

§  265.  There  were  other  defects  seriously  urged  against  the 
confederation  which  although  not  of  such  a  fatal  tendency  aa 
those  already  cnuiiicnitcd  wore  deemed  of  sulVicient  importance 
to  justify  doubts  as  tu  its  efiieuey  ax  a  lioiid  of  tmion  or  an  endur- 
ing scheme  of  goreninient  It  is  not  ncocaaary  to  go  nt  lai^ 
into  a  consideration  of  them.  It  will  suffice  for  the  present  pur- 
pose to  enumerate  the  priucipal  heads.  1.  The  priueiple  uf 
n^ilating  the  contributions  of  the  States  into  the  common  treas- 
iiry  by  quotas  apportioned  according  to  the  vnlue  of  laiidH,  which 
(as  has  tfcen  ali-eady  suggested)  was  objected  to  as  unjii»i,  lui- 
equal,  and  inconvenient  in  ita  operation.*  2.  The  want  of  a 
mutual  guaranty  of  the  State  gorcntmcnta,  so  as  to  protect  them 
against  domestic  insurrections,  and  usurpations  deatnietive  of 

)  1  r^tk.  Hilt  1»S ;  8U*nfc.Lihi)rVMh.ra. 
1  G  M*n>b.  Ufa  of  WBtLiBStOD,  10,  81. 

*  5  itnnh.  tit*  at  WaiLiestno,  Apf>.  Dot*  ]. 

*  Th<  Ftdmliil,  Mo.  31  i  S  Abk.  Ummid.  tS.  M,  M. 


CR.  IV.]  DECLINE  AND   FILL  OP  TBE  COXFEDERATION. 


189 


their  liberty.'  S.  Th«  want  of  n  direct  power  to  raiae  armies, 
which  wat)  objected  to  as  iinfricndly  to  rigor  and  promptitude  of 
action,  SA  well  an  to  ecnnoRiT  and  a  ju8t  diatrihiition  of  the  public 
burdens.'  4.  The  i-ijiht  of  equal  finffrage  among  all  the  StateR, 
so  that  the  leaat  in  point  of  wealth,  population,  and  meana  atood 
equal  in  the  scale-  of  repvpsentntion  with  thuso  which  were  the 
Inrgi.'flt  Prom  tliia  eircumstanix'  it  might,  nay,  it  must  happen, 
that  a  majority  of  this  Stutca,  constituting  a  third  only  of  the 
Jieople  of  America,  eutitd  control  the  rights  and  interests  of  the 
other  two  thirdn.*  Nay,  it  was  constitutioually,  not  only  {Kiwi- 
ble,  but  true  in  fact,  that  even  the  votca  of  nine  States  might  not 
comprehend  a  majority  of  the  |>eoplo  in  the  Union.  The  minor- 
ity, therefore,  po«»eii«ed  a  negative  upon  the  majority.  &.  'Die 
organization  of  the  whole  powera  of  the  general  government  in  a 
single  assembly,  without  any  separate  or  distinct  distribution  of 
the  executive,  judicial,  and  legislative  functions.*  It  was  ob- 
jected, that  either  the  whole  superstructure  would  thus  fall,  from 
ita  own  intrinMc  feebleness;  or,  engrossing  all  the  attributes  of 
aovenjignty,  entail  upon  the  country  a  most  execralde  form  of 
government  in  the  shape  of  an  irresiKmsible  aristocracy.  6l  The 
want  of  nn  erelvnve  power  in  the  general  government  to  issue 
paper  money,  and  tlins  to  prei-ent  the  inundation  of  the  coimtry 
with  a  irtse  curreney,  calculated  to  destroy  piiMie  faith  as  well  as 
private  morals.'  (<•)  7.  Ilie  too  frequent  rotation  required  by  the 
confedcmtion  in  the  office  of  niemliei-s  of  Oongreiwi,  by  which  the 
advantages  resulting  from  long  exjterience  and  knowledge  in 
the  public  alTairs  were  lost  to  the  public  councils.*  8.  TIio  want 
of  judiciary  power  coextensive  with  the  powers  of  the  general 
government, 

§  266.  In  respect  to  this  last  defect,  the  language  of  the  Fed- 
eralist ■  contains  so  full  an  exposition  that  no  further  comment  is 
required.     **Laws  are  a  dead  letter  without  courts  to  expound 

>  The  FnlenlM,  Kn.  31 ;  3  Am*r.  UoMUM,  n,  45.  , 

»  The  FolwrfW.  No.  39. 

(  The  Fcdmilkt.  Ka.  S! ;  1  Amw.  Huma,  «7fi  ;  S  An«r.  Uiurani,  62,  M. 

*  The  raltntli*),  X*.  IS  {  I  AaMT.  MuMU.  8,  » :  Id.  273 1  9  Anw.  Uuaeun,  82, 
ail ;  ]  Kmt-t  Cm,».  LraL  10,  p^  SOO  (M  adlL  p.  811). 

*  1  Anwr.  Uiunini.  S.  «  ;  Id  343. 

*  I  Abmt.  HmmiDi.  S,  0  ;  3  AoKf.  Haaeani,  OX  M- 
'  The  PedmlUt,  Ko.  22. 

<•)  8n  Vn  Bvtn,  Politkal  Putie*^  BS ;  Lift  of  auaaa  Adw^  U.  4M 


IflO 


amOBT  OP  THE  COXFEDEilATlOS. 


[book  n. 


aiid  ddine  their  troe  mmuilng  oud  opt-rtttion.  Tho  treaties  of 
Ihv  United  Slates,  to  have  anj  force  at  all,  muftt  bo  couHidored 
u  part  <d  the  law  of  the  land,  llieir  true  import,  oa  fur  tm  ro- 
Bpects  individuals,  muat,  like  all  other  iawti,  l>e  n8««rt»(iiud  by 
judicial  detonniaationB.     To  produce  uniformity  iu  tliese  dcter^ 

,  minationa,  they  ought  to  be  nuhmitted,  in  the  last  resort,  to  one 
snprenic  tribunal.  And  this  tribunal  ought  to  be  instituted 
under  the  same  authority  which  forms  the  treaties  tbeniiiclves. 
These  ingredienta  are  both  indispcnsublc.  If  tliore  in  ia  each 
State  a  court  of  final  juritultcliuii,  tliure  may  be  ait  many  differ- 
cnt  linal  dctenni  nations  on  the  aamo  poiut  as  there  are  courts. 
There  are  endless  diversities  in  (ho  opini(>nft  of  men.  We  often 
see  not  only  different  courts,  but  the  jtid(^-«  of  the  same  court 
differing  from  each  other.  To  avoid  the  confusion  which  would 
unavoidably  resnlt  from  tho  contradictory  dccitiioiut  of  a  number 
of  iadepcndcnt  judicatories,  all  nations  tutvo  found  it  neocasary 
to  establish  one  tribunal  paramount  to  the  rest,  )>oafte88ing  a  gim- 

^•ral  superiDtendence,  and  authorized  to  aettio  and  declare,  iu  the 

I  last  resort,  an  miiform  rule  of  justice. " 

§  267.  "This  ia  th«  mure  necessary  where  the  frame  of  gor- 
cmmont  is  so  compounded  that  the  laws  of  the  wtiole  are  in 
daniicr  of  being  coatraveacd  by  the  laws  of  the  parts,  Ac.     The 

Ureatic«  of  tho  United  States,  under  tiie  present  cuufodemticMi, 
arv  liable  to  tho  infractions  of  thirteen  different  legislatures,  and 
as  many  different  courts  of  Gnal  jurifldiction,  acting  under  the 
authority  of  theso  Icgislaturca.  Tho  faith,  the  reputation,  the 
IOC  of  tho  whole  Union,  are  thus  continually  at  tho  mercy  of 
the  prejudices,  tbo  passiouis  and  the  interests  of  civcry  member 

^  of  which  these  arc  composi-d.  Is  it  jMKUtible,  under  such  eircuoi- 
ttances,  that  foreign  nations  can  cither  respect  or  confide  in  such 
goromnient?  Is  it  posslblt;  that  the  people  of  America  will 
ongor  consent  to  trust  their  honor,  their  happiness,  their  safety, 
<m  so  precarious  a  foundation  ?  '*  It  might  have  hcen  added  that 
(hi"  ri)ihta  of  indft-iduals,  bo  far  as  thny  depended  ujwn  acts  or 
authorities  derived  from  the  confederation,  were  liable  to  the 
same  difficulties  as  the  rights  of  other  nations  dejiendcnt  upon 
treaties. ' 

§  '2fiH.    The  last  defect  which  seems  worthy  of  cuumeration  la, 
that   the  confmlenilion  never  had  a  ratification  of   the  PSOPL^ 


>  Sk  CUdmfaa  *.  Otoigm.  i  UalL  B.  il0,  447. 


CH.  IT.] 


DKCUNB   AXD  PALL  OP  THE  COXFEDEBATION. 


191 


Upon  thia  objection,  it  will  he  aufficient  to  quote  a  single  pa»- 
sagzi!  from  the  same  oclebratcd  work,  aa  it  affords  a  very  striking 
commentary  vptm  Rome  extraordinary  doctrines  recently  pro- 
mulgated.' "Itestinjf  on  no  better  foundation  than  the  consent  of 
the  State  Icgislftturps,  it  [th«  ooofetlcration]  has  been  exposed 
to  frequent  nod  intricate  questions  conocmia^  the  validity  of  its 
puwont,  and  litis,  in  sonic  instances,  given  birth  to  tlw  unormoiia 
doctrine  of  a  right  of  It^slative  repejil.  Owing  ita  ratificati<»i 
to  a  law  of  n  State,  it  has  been  contended  that  the  s^ime  authority 
might  r(^|wal  the  law  by  which  it  was  ratified.  However  grons  » 
heresy  it  may  he  to  maintain  that  a  party  to  a  compact  has  a  right 
to  rrvoki>  that  iwropact,  the  doctrine  itself  lias  had  respectahlo 
advocates.  The  poA.tiliility  of  a  question  of  this  nature  proveji 
the  necessity  of  laying  the  foundations  of  our  national  gorem- 
ment  deeper  than  in  the  mere  sanction  of  delegated  authority. 
The  fabric  of  American  empire  ought  to  rest  on  the  solid  basis 
ol  the  O0.KSCNT  OP  TB£  PEOPLE.  The  streams  of  national  power 
oiifiht  to  flow  immnliately  from  that  pure,  original  fountain  of 
all  legitimate  authority. "  ' 

^  269.  The  %'ery  defects  of  the  oonfederatioD  seem  also  to  haro 
led  Congress,  from  the  pressure  of  public  necessity,  into  gome 
usurpations  of  authority,  and  the  States  into  many  gross  infrac- 
■  tions  of  its  Ifgitimatc  sovereignty.'  "A  list  of  the  cases,"  says  the 
Federalist^  "in  which  Congress  havo  been  betrayed  or  fort-cd  by 
the  defects  of  the  confederation  into  violations  of  their  chartered 
authorities,  would  not  a  little  surprise  those  who  have  paid  no 
attention  tu  the  subject."*  Again,  speaking  of  the  western 
territory,  and  reforriDg  to  the  OrdinODCa  ol  1767,  for  the  gov* 
emment  thereof,  it  is  observed:  "CooKreM  have  assumed  the 
admtnistratiun  of  this  stock.  They  have  begun  to  render  it  pn>- 
duetirc.  Congreas  liave  undertaken  to  do  more;  they  have 
proooedod  to  form  new  States,  to  erect  temporary  governments, 
to  ap]H){nt  ofTiccrs  for  them,  and  to  prescribe  the  conditions  on 
which  such  Stales  shall  be  admitted  into  the  c«>nfederacy.  All 
this  has  been  dune,  and  done  without  tho  least  color  of  constitu- 
tional authority.  Yet  no  blame  has  been  whispered,  no  alarm 
been  sounded."' 


■  Tin  PxIfnKil,  Ko.  13  1  1  EcM'tCMoni,  Lect-lO.pp.  »•!  [^  fJlt.  |ii.  314,  SlG]. 
•  tlM  Fcdcnlud,  Ho.  il  *  Iht  FcdenJM,  M*.  38. 


192 


BmOBY  OP  THE  CONPRDKRATION. 


[BOOK  II. 


%  £T0.  Wliatorer  may  be  thought  as  to  eome  of  thc«e  ctiamor* 
Atoi]  (lefoctii,  whot]]«r  they  were  radical  deficiencies  or  not,  tlicro 
cniiDot  \>c  u  dwiltt  tJiBt  othcnt  nf  them  went  to  the  very  marrow 
and  exiHriiei;  of  ^vernnioiit  There  had  )>c4!n,  and  in  fact  then 
wore,  different  parttcH  in  the  sereral  States,  entertaining  opiniotu 
hostile  or  friendly  to  the  existence  of  a  general  government'  (a) 
The  former  would  naturally  cling  t^>  the  State  govemmonts  with 
a  cluHO  And  unabated  zeal,  and  deem  the  least  possible  delegation 
of  power  to  the  Unign  aufficient  (if  aiiy  wen*  to  bo  permittcdX^y 
with  which  it  could  creep  on  in  a  Bvmi-aoimatod  state, 
latter  would  aa  naturally  dc«iro  thnt  the  powers  uf  the  general 
l^vernnK'itt  ithould  liavo  a  real,  and  not  merely  u  siMp^^'uilcd  vital- 
ity; that  il  rtliuiild  net  and  move  nnd  guide,  and  not  iiicroly  U>t4er 
under  its  own  weiglil,  or  sink  into  n  drowsy  decrepitude,  power- 
lefls  and  fuiUied.  Hut  each  party  miut  have  fell  that  the  oonfed' 
oratiuii  had  at  last  totally  failed  as  an  cfl'cctuni  instrument  of 
government ;  that  its  glory  was  deimrteu,  nnd  its  days  of  lubor 
done;  that  it  stood  the  shadow  of  n  iniglily  name;  that  it  vm 
seen  only  as  a  decayed  monument  of  the  past,  incapal)le  of  any 
enduring  record ;  that  the  steps  of  its  decline  were  numlKred  and 
fini^hnl;  and  thnt  it  was  now  pausing  at.  the  v«ry  door  of  that 
eommon  scpukhre  of  the  dead  whose  inscriptJon  is,  Nnlla  vatigia 
retrorfum. 

§  *J71.  If  this  langimge  should  be  thouglit  too  figurative  to  suit 
the  «it>tiriety  of  biatorical  narration,  we  might  avail  ouisclves  of 
langiiHgi-  as  strongly  coluntd  and  aa  dcsjHinding,  which  wu  at 
that  period  wrung  from  the  hearts  uf  our  wisest  patriots 
stateomon.'  It  is.  Indeed,  diflScalt  to  overcliarp;  any  picture 
the  glooin  and  apprehensions  which  then  pcrvad^-d  ttie  ptiblie 
conncils  as  well  m  the  private  meditations  of  the  ablest  men  of 
the  iMitutry.  We  an>  told  by  an  historian  uf  almost  uoexample 
fidelity  nnd  lumlerniiou,  and  hiuuelf  a  witness  of  theae  scenes,* 
that  "  Ih**  confederation  was  apparently  expiring  from  mere  de- 
bility.    Indeed,  its  preseiration  in  its  actual  conditiaa,  had  it 

*  t  Mmh.  IJh  of  WMUagtM,  33. 

*  SUudL  lifrorWMk.t£MkM.H.M^llH.tlt,114.118.1UilE«nt'*CMM,^ 
W)  1  Took.  tOaA.  Caam.  App^  mu  D,  lU.  IM  ;  1  EUkCt  EMMh,  308  In  SU  ;  3 
BBoTi  IMMte.  M,  SI  to  14. 

*  S  llMilt.  Lift  ot  Wm^  lit. 

(a)  Sm  Vn  Bum.  Mhkd  PwtiM^  S»  1  HiaMWid,  gaaaal  Bat  rf  S.  It.  L  S 


CH.  IV.]  DECUNB  AND   PALL  OP  TUB  COKPEDEBATION. 


198 


l)cen  practicable,  waa  scarooly  to  be  deaii-ed.  Without  the  abil- 
ity to  «x«rcii)«  them,  it  uithheld  from  tlie  States  powers  which 
ore  essential  to  their  aovereigaty.  The  huit  hope  of  its  fricndti 
havintr  been  deatroyed,  the  vital  necpSHity  of  some  raflasiire  which 
might  prevent  the  separation  of  the  inu-gral  parts  of  which  the 
American  empire  waa  composed,  became  apparent  even  to  Uune 
who  had  bc«tt  unwilling  to  percelro  it."* 

>  Mr.  JolTaraan  mmt  tha  fall«wing  Un|,-ua||^  t  "Tht  (ItUoM  brtwMn  tlu  SutM, 
Dnder  tha  old  Aitkin  of  CofiManlloti,  fur  l1i«  jiurpow  of  Joint  dafenM  ^lioBt  th« 
«q(limion»  of  Omt  ItiiUiii.  mu  fouiiJ  iniuEncicut,  lu  trntju  of  alluncc  gcnmilljr  arp, 
to  mifane  toHpluncn  irith  ihrir  luutunl  itipuktioni ;  awl  thae  an«  fullUlcd,  tlut  bonil 
vu  to  ex|>in  of  itMir,  and  cac'h  State  lo  bccomo  acircT*)|[a  and  indBpendnit  In  all 
tfaiiij[K"  4  JeHunun't  CorratpL  ^^^.  Tlina,  ha  iK^^in*  lo  tiarn  lii'lil  tlia  aitnordinary 
Ofrinion,  that  tl>«  ooatwl«r*tlon  wm  U>  cmm  wiib  tb«  Wir,  Of,  al  all  n«nU,  with  lb* 
ruUtnunt  ut  our  tnatf  atipalatioiu.  <a) 


(d)  In  •ORia  ImUdoh,  hninm,  Mr. 
JaBanon  afijMare  to  bare  ^skiin  at  thm 
oosfcdention  ^aa  poMoaaJng  conaidcrBble 
Titalltj.  nrnjcf,  •nd  Tl(or. 

Ill  ■  IcUor  to  Joha  Aduniv  <^  <^  ^U 
of  Trbnaij  St,  ITST,  nivniitg  to  what 
Mr.  Adan*  had  Hid  ol  lh>  Cnagtt»K  tliat 
it  *'  ii  Mt  a  bgiaUtire  but  a  diplomatio 
MimUy,"  Hr.  JcdTcraon  layi :  "  S<f  {arat- 
laf  into  jtiU  tho  wkola  Kivct*i^:ty  r4 
oar  Sutaa,  aoot*  of  th«a*  part*  ars  jivideil 
to  CtingnM.  Upon  thna  I  tbould  thialt 
tbcm  boih  IpgiilatiTv  and  uucutire,  and 
tltat  troold  baro  b«n  judiriury  oj>o,  had 
not  lb*  omCcdcrstloD  required  them  for 
Otttalii  purpoati  to  appoljit  •  jadlclai;. 


It  hat  accordinglj  bMD  the  dMliloa  «f 
onr  oovrta  that  the  confadaiatian  ia  a  part 
of  tka  hw  of  tha  land,  and  anptrior  in 
anthoritT  to  th*  ordinary  lam,  bmuae  U 
caannt  be  aluraj  bj  tbc  legialatura  uf  any 
on«  Statfk  1  donbt  whather  thej'  are  at 
all  ■  diplomatic  aaaembly."  JaBtrton'a 
Worka.  II.  I'iS  -.  Work*  of  John  Aduni, 
VIII.  133.  EhKwhore  Hr.  JelTeniui  n- 
pKaiied  the  cjdaiiut  that  the  oonfaUratiaM 
t^  the  pewar  to  coerte  Iha  ptofonNuea 
hj  tndlTidnal  Sta4aa  of  MUonal  datl«^ 
and  that  ii  was  inplioJ  In  tha  oeanpact. 
J>a<non->  Works,  IX.  3»1 ;  USi  of  Vad- 
iBon.l^BiTea,  L  302. 


TOL.  I.  —  13 


BOOK    III. 


THE  C0NSTITUTI02J  OF  THE  UNITED  STATEaj 


CHAPTER  I. 


V  OBIOIN   ISD  ADOPTION  OP  THE  COSSTtTtTTlON. 

§^72.  Ik  this  state  of  things,  commissioners  were  appointed 
by  thtt  IcgiiilaturoB  «f  Virginia  and  SJarjland,  early  in  1785,  toj 
form  a  compact  relative  to  the  navigation  of  the  rirera  Potomao'i 
and  Pocomoko,  and  the  Cbcsapcoko  Bay.  The  GommiasioDera 
having  met  at  Alexandria  in  Virginia  in  March,  in  that  rear, 
felt  tlie  want  of  more  enlarged  powers,  and  particularly  of  powera 
to  providu  for  a  local  naval  force  and  a  tariff  of  duties  upon  im- 
port«.  (o)  Upon  receiving  their  recommendation,  the  legislatoraj 
of  Viiyinia  pasiic-d  a  resolution  for  laying  the  subject  of  a  tariCF* 
before  all  the  Slates  com|N»ing  the  Union.  Soon  afterwards,  in 
January,  1786,  the  Iegi«laturc  adopted  another  roaolution  ap- 
pointinf!  commissi onera,  "who  were  to  meet  such  as  miiilit  bo 
ap|K)inted  by  Uie  other  i^latt«  in  the  Union  at  a  time  and  place  to 
be  agreed  on,  to  take  into  eoiisideration  the  trade  of  the  United 
States;  to  examine  the  relative  situation  and  trade  of  the  States; 
to  cooaider  how  far  a  uniform  system  in  tlieir  commennal  rela- 
tions may  be  necessary  to  their  cotnmou  interest  and  their  per- 
manent harmony ;  and  to  report  to  the  several  Statea  such  an  act, 
relative  ta  this  great  object,  as,  when  unanioioiisly  ratified  by 
them,  will  enable  the  United  States  in  Congress  assembled  to 
provide  for  the  same, "'(J) 

§  273.    These  resolutions  were  communicated  to  the  State's, 
and  a  convent  ion  of  commissioners  from  five  States  only,  namely, 

■  a  iUhtt.  UU  or  Wuk.  »0,  »1  ;  l  Kui*  Cohim.  108. 

(«}  fOtm.  lifoorHtdbM,  1.  S(8;  It.  »7. 
iH  KvM,  Ur«  at  X*diMM,  II.  ». 


CH.  t.] 


OBicm  AND  AnomoN  of  the  cwfrsTirunox. 


195 


New  York,  New  Jersey,  Penngylvanift,  Delaware,  and  Vii^nit, 
met  At  Annapolia  in  .September,  1786.*  {a)  After  diacuftaing  the 
subject,  they  deemed  more  ample  powers  ncceiiaary,  and  »»  well 
from  tbia  ooosidenition,  aa  because  a  small  number  only  of  the 
States  was  represvuted,  th«y  agreed  to  como  to  no  decision,  but 
to  frame  a  report  to  be  laid  before  the  several  States  aa  well  as 
before  Congress.*  In  this  report  they  recommended  the  appoint- 
ment of  Gommissioners  from  all  the  States,  *'lo  meet  at  Phila- 
delphia on  the  second  Monday  of  May,  then  next,  to  take  into 
consideration  the  situation  of  the  United  Slates;  to  devise  such 
further  provisions  as  shall  appear  to  them  necessary  to  render 
the  oonstitutiou  of  the  Federal  government  adeifuate  to  the  ex- 
igencies of  the  Union ;  and  to  rc[M)rt  such  an  act  for  that  pur- 
pose to  the  United  States  in  Congress  assembled,  aa,  when  agreed 
to  by  them,  and  afterwards  con&nncd  by  the  legislature  of  everj 
State,  will  effectually  provide  for  tlie  same. "'(A) 

>  1  Abkt.  Uwndn.  S8T :  t  PitL  Hbt.  SIS. 

«  S  UudL  Lib  of  Wjufa.  n  1  i Ktk.  SIS i  1 II-  8.  Uw«  IBioras  t  Duomi  edit. 
ISIS),  pp.64,  ftc.  to  as. 

*  1  Aaier.  Mmmiii.  207,  SOB. 


(a)  Wn«,Ur««f  H«1Imd,II.H,117, 

a)  Rimv  Life  of  Haduoii,  II.  !». 
TIm  pniBbU  of  thii  Kt  ii  warHkj  ef 
prw«rT«ttow  u  »  rfc«|cnillai>  of  tbe  Inuno- 
dbito  iiul  inpMiliva  nwmitr  for  ndical 
■lisagi*  ill  tlMbaiid«f  iinioa.  "  Wh«raa 
tiw  OaoMsl  AaMublf  of  thii  Conunoa* 
v«]lb,  uktng  tiito  *i«w  U»i  octul  iltn*. 
tion  of  tin  cMtTedttvcy,  u  w^ll  m  t*4*cI- 
ing  en  the  »laniring  RpreKDtalioBa  made, 
ftoMi  dno  to  tinu,  bjr  tbc  UdUmI  StatM 
Is  CongnM,  putieularl  J  tn  Oudt  m4  of  the 
15tk  da;  of  Pebrtuy  Int,  can  do  laaga 
doabt  tbrt  the  erUi*  ii  arrival  >t  which 
th«  good  ftofie  of  .\ni«rim  tr«  to  d«(*d« 
tk*  *olnn«  <)uuIlo«  BbtUier  thrjr  will,  by 
kIw  and  magBMihuoua  aS»1«,  nap  tlw 
|nit  IMU  of  that  inilcfwndanot  whkti 
iktj  ha««  M  glorioatij  aoquited,  Mrf  of 
lb<  UhIm  wUch  th*r  ham  OHDcnMl 
wHh  (0  nook  of  thfir  camntao  blood  ;  or 
whc*b«r.  bf  luring  way  to  »u«a<J  >ahHi*- 
is  anil  jngudicm  o*  to  partial  a»d  U*»- 
■iMiy  latanata,  tbtjr  trill  wiwmmb  tlw 


aiufjdoua  blcaidn^pi  ]irapar«d  br  tlum  hf 
lb*  BfToluttou.  ind  rurnuih  to  its  mrmiea 
an  enatnal  triuoi[>li  ovrr  Ihotc  b]r  whoa* 
rirtae  nidnlor  It  hubccDaoniniplUbtd: 
and  vhenai  tha  Mine  nobic  and  ■i(«ndad 
)>ollc7,  and  thw  miaa  fnl^nul  and  alko- 
Uoaale  atntinviiti  whidi  originaUjr  iMw- 
minad  tbo  citueoa  of  thia  CoannMnwtaHb 
lo  unite  with  their  brttkrra  et  tha  OtlHT 
Staira  Id  iquMiihitig  a  fcdanl  f»*«n- 
ln«Qt,  cannot  but  be  felt  with  ajnal  lorca 
DOW,  aa  motiTei  t«  Uf  Made  ertiy  tnferiot 
eoaddefatiao  and  to  ooncar  b  aueh  farther 
BOB  taaaloiia  and  prorialoM  m  may  Ix  »a- 
tiaauy  to  atnite  the  p«at  olyaet  for  whkb 
that  goiwiBmenl  <ra(  MtaUiihed,  and  to 
nader  the  Uoiud  Statca  m  hapfj  In 
peaco  ai  th«j  have  been  gloeioDa  In  war." 
The  caitfal  woMtng  of  thia  pnaiabi*  vaa 
doe  to  a  dnir*.  aa  Hi,  Hadjtoa  aaji,  "  to 
give  IhU  nibieet  a  Tcty  Mlenui  dreaa,  and 
all  the  weight  that  rniild  be  deriicd  (ran 
a  ali^a  Suto.~  I/<Iter  to  Waikli^pMi, 
tUvM*!  Life  of  UadikM,  II.  13S. 


106 


cossirrcnoK  of  iob  united  states.        [book  ra. 


S  274.  Oq  recieving  this  report,  the  l«gi«I«twre  of  Virginia 
pasaed  an  act  fur  the-  uppointiiicnt  of  delegates  to  meet  such  as 
might  bt!  apiwiiitoii  by  ollivr  States,  at  Philadelpliia.' (a)  The  re- 
port was  alito  reevived  in  Congress.  But  no  strp  was  taken  until 
the  legislature  of  Xew  York  instructed  its  delegation  in  Con- 
gress to  move  a  resolution,  recommending  to  the  several  Stutee 
to  appoint  deputies  to  cpeet  in  conrentifMi  For  the  purpose  of  re- 
vising and  proposing  amendmenta  to  Uie  federal  Constitution.' 
Oo  tli«  21st  of  February,  1787,  a  resolution  was  accordingly 
moved  and  carried  in  Congress,  recommending  a  convention  to 
meet  iu  Philadelphia,  on  the  second  ^lomky  in  May  ensuing, 
"for  the  purpose  of  revising  the  Articles  of  Confederation,  and 
reporting  to  Congress  and  the  several  legislatnres  such  altera- 
tions and  proTisions  tJicrein,  as  shall,  when  agreed  to  in  Con- 
great  and  confinned  by  the  States,  render  the  federal  Constitution 
Rd<>(|URto  to  the  exigRncica  of  government  and  the  preservation  ot 
tlie  Union."*  The  alarming  insurrection  then  existing  in  Massa- 
chusetts, without  doubt,  had  no  small  share  in  producing  thia 
result  The  report  of  Congress  on  that  subject  at  once  deoHui- 
Btrales  their  feam  and  their  political  weakness.* 

$  275.  At  the  time  and  place  appointed,  the  representativee  of 
twelve  States  assembled.  Rhode  Island  alone  declined  to  appoint 
any  on  this  momentous  occasion."  (b)  After  very  protracted  delib- 
erations, (he  convention  finally  adopted  the  plan  of  the  present 
Constitution  on  the  ITth  of  September,  1787 ;  and  by  a  contem- 
poreneuus  resolution,  directed  it  to  be  "laid  bcf(Mi«  the  United 
States  in  Congress  assembled,"  and  declared  their  opinion,  "that 
it  should  afterwards  be  submitted  to  a  convention  of  delegates 
cho»en  in  each  State  by  Uic  people  tltercof,  tmdcr  a  reconuncnda- 
tloD  of  its  legislature  for  tlieir  aaaent  and  ratification-/' ^{c}  and 

>  5lbnli.lifoanrMli.es. 

■  It  *■*»  carried  In  tbt  Miuta  of  th*  fluto  by  •  nui^t;  of  mm  onlj.  S  lluih.  lib 
oTWatli.  1S5. 

■  !  Plik.  Hilt.  SIS  ;  5  Uanh.  Uh  ot  Wub.  Ill,  138  ;  11  Jaorn.  oT  Oangrau.  12 
13,  U:  S  mk.  Hitt.  Sie.  ttO,  «!£. 

*  SrUk.  Hiu.  aM,  221]  lorn.  ctCooifftm,  Oct.  \7»i  1  Socrat  Joiun.  9SS. 

■  S  lUnb.  lite  ofWadL  lU. 

*  SUanL  Uf*  of  Wuhli^oD.  ISS,  l»i  Joats*]  of  Oonfeatiuii,  SrO;  ISlMun. 

orOMeM^  io9i  s  ntk.  Riat.  sst,  mi. 

(d)  Bine^  UraoTUuIiMi,  tL  Itt. 

M  AhmU.  HiM.  o(  lUiod*  Ubwil.  It  t«7. 

Ui  U*M,  U(a  oriCnliiOii,  11.  477. 


cmi.} 


OBIGIK  AND  ADOPTIOjr  OP  THE  COSOTITOTIOS. 


197 


that  each  conrcntiun  iu»CDtin4t  to  and  ratifying  the  same  should 
give  notice  thereof  to  Con^ctw.  Tbc  coiivcntitHi,  by  a  further 
n-ftulution,  deelarvd  their  opinion,  thnt  as  noon  aa  nine  States 
hod  ratified  tlie  Cuimtitution,  Cougreea  should  fix  a  day  on  which 
electors  should  be  appointed  by  tlie  States  which  should  have 
ratified  the  same,  and  a  day  on  which  the  electors  should  assem- 
ble and  vote  for  the  president  and  time  and  place  of  oooimencing 
proceedings  under  the  Constitution;  and  that  after  such  publi- 
cation the  electors  sliould  be  appointed  and  the  senators  and  rep- 
resentatives elected.  l*he  same  tesolution  contained  further 
recommendatioits  for  the  purpose  of  carrying  the  Constitution 
into  effect. 

§  276.  The  convention  at  lite  same  time  addressed  a  letter  to 
Congrctt,  expounding  their  reaauus  for  their  act»,  from  which  tlie 
following  extract  cannot  but  be  interesting:  *'It  is  obviously 
irapmrrticnble,"  says  the  address,  "in  the  federal  government  of 
these  States,  to  secure  all  rights  of  independent  sovereignty  to 
eaeh,  and  yet  provide  for  the  interest  and  safety  of  all.  Indi- 
viduals entering  into  society  miint  give  up  a  share  of  liberty  to 
preserve  the  rc.it.  The  magnitude  of  the  sacrifice  must  depend 
as  well  on  situatjon  and  circumstance  as  on  tbe  object  to  be 
obtaioed.  It  itt  at  all  tiim^s  difficult  to  draw  with  preeieion  the 
line  between  tlio««e  rights  which  must  be  snrrendered  and  tlione 
which  may  be  reserved ;  and  on  the  present  occasion  this  dilh- 
culty  was  increased  by  a  difference  among  the  several  States 
as  to  their  situation,  extent,  habits,  and  particular  interests. 
In  all  our  delil>orations  on  this  subject,  va  kept  steadily  iu  our 
view  that  which  apjwars  tn  ua  the  greatest  inton'st  of  every  true 
American,  the  eontolidaiion  of  our  Uwon,  in  which  is  involved 
our  prosperity',  felicity,  safety,  perhaps  our  national  existence. 
This  important  consideration,  seriously  and  deeply  impreucd 
on  our  minds,  lud  each  Stale  in  the  convention  to  l>e  ii:«8  rigid 
on  point«  of  inferior  magnitude  then  might  have  l>een  otherwise 
expected.  And  t!ius  tkt  ConttUvtioiu,  which  we  now  present,  is 
tk«  remit  of  a  ipirit  of  amity,  and  of  that  mMtunl  drftrrntre  ami 
eoKCftnun  which  the  peculiarity  of  our  political  sittuition  ren- 
dered indispensable."  1 

5  277.    Congress,  having  received  tlie  rc)>ort  of  the  convention 

■  uJoom.  afCoucn«,109,  110;  Jonn.  ol CoonntioB, S47.  S<$ ;  B  HmsIu  Ufa 
ofWulbUV. 


198 


coxsmcTios  or  the  dnited  sTAtEa.        [book  iu. 


on  th«  28th  of  September,  1787,  uiumimoiwly  resolved,  "that  th« 
said  report,  vith  tho  reaolntions  and  lvtt4;r  avcoinpanying  the 
8nm«,  be  traosmUtvd  to  tho  scvtMuI  legislnturcft  in  urdcr  to  b« 
submitlod  to  a  c^nv^ntioH  of'  dtUgatei  ehunen  in  each  State  hg  (lit 
peopU  thtrtof,  iit  conformity  to  the  resolves  of  tJie  coare&tion, 
■undo  and  provided  in  tbat  ca«c. " '  (o) 

§  278.  Conventions  in  the  rarions  States  which  had  1>ecn  rep* 
resented  in  the  general  convention  were  accordingly  called  by 
their  respective  legislatures;  and  the  Constitution  having  been 
ratified  by  eleven  out  of  the  twelve  States,  Cunirross,  on  the  13th 
of  September,  1788,'  passed  a  resolution  apixtintiog  the  first 
WcdnoMjay  in  January  follovinK  for  tho  choice  of  electors  of 
president;  the  firat  Wedaesduy  of  Fobruury  follonin)^  for  the  aa- 
lerablini;  u(  the  elcctum  to  vote  for  a  pre»idi-nl;  and  the  firet 
Wodnusday  of  March  following,  at  the  then  seat  of  Congress  (New 
York),  the  time  and  place  for  conimcucing  prootH-dtnf;^  nnder 
the  Constitution.  Elcctoni  were  accordingly  appointed  iu  the 
aevenil  States,  who  met  and  gave  their  votes  for  a  president ;  and 
tlie  other  elections  for  senators  and  repreitentnttvee  having  been 
duly  made,  on  Wednesday,  the  4th  of  March,  1789,  Congress  as- 
sembled and  commenced  proeoedings  under  the  new  CoostJtu- 
tion.  A  quorum  of  both  houses,  however,  did  not  assemble 
until  the  6th  of  April,  when,  the  votes  for  president  being 
counted,  it  was  found  that  George  Washington  was  unanimously 
elected  president,  and  John  Adama  was  elected  vice-president.' 
On  the  iiUth  of  April  President  Washington  was  sworn  into  office, 
and  tlie  government  then  went  into  full  operation  in  all  its 
departments. 

§  279.  Xorth  Carolina  had  not,  aa  yet,  ratified  the  Constitu- 
tion. The  first  convention  called  in  that  State  in  August,  1788, 
refused  to  ratify  It  without  some  previous  amcndmenta  and  a 
declaration  of  rights.  In  a  second  convention,  however,  callod 
in  Xovem)x*r,  1789,  this  State  adopted  the  CoustitulioD.*     The 

>  G  Manli.  lift  «f  WhIi.  198  ;  11  Jonrn.  cf  Omptm,  M,  110 :  Jonrti.  «f  Con**** 
tion,  Ap^  Ml. 

*  JomL  dlContvatlaii,  App-  449,  ISO,  4SI ;  SPllk.  llUt  291. 

*  G  Uank.  Ui*  et  Vub.  133,  ISl,  m  ;  3  Pill:.  HlM.  317, 318  ;  1  Uojrd'a  THtmUt, 

*  S  PiU.  tint.  2)S ;  jMm.  of  Cannatiof^  Afp.  US ;  I  K«at'i  Comm.  904,  SIM. 
in)  RItm,  1.1b  at  MadlMIK  11-  ISO. 


tm.  I.] 


ORIOIK   AND   ADOPTION   OP  THE  COSSTtTVTION. 


199 


State  of  Rhode  Island  bad  declined  to  call  a  convvntioa;  but, 
finally,  by  a  convention  held  in  May,  1790,  its  (MS4.-iit  wag  otv 
tained;  and  thus  all  the  thirteen  ori^nnl  States  became  pArtics 
to  the  new  government. '  (a) 

§  280.  Thn9  wad  achiered  another  and  still  more  glorious  tri- 
umph in  the  cauite  of  notional  lilierty  than  even  that  which  sep- 
arated 119  from  the  mother  country.  By  it  we  fondly  trust  that 
our  re[Hil>lioan  inntitutiona  will  grow  up,  and  be  nurtured  into 
mor«  matured  strength  and  vigor;  our  independence  be  itecurcd 
against  foreign  usurpation  and  aggrcfuiion ;  our  domestic  bletu- 
inga  be  widely  diffused  and  gencratly  felt;  and  our  union,  as  a 
people,  bo  perpetuated,  as  our  own  tnwat  glory  and  support,  and 
as  a  proud  example  of  a  wise  and  beneficent  ((ovemnient,  entitled 
to  the  respect,  if  not  to  the  ndmi ration  of  mankind,  (i) 

■  2  IHtk.  nUt.  S«5 ;  Joarn.  «r  Convention,  App.  Hi,  tSS. 


(n)  Bjvttiaguidethe ArticleaafCon- 
ftdfntian,  vliwh  hj  tkcli  tarnii  Ttrv  to 
I  bt  uddM  of  "  pcrpdtiul  union,"  iin4  bj 
I  nMltntbig  Uutatd  tbvmof  *  Comtitu- 
['lion  to  «liieh  (wo  of  the  8t«tM  bml  not 
Mwntad,  HioM  SlatM  wen  U  onto  tad 
•ICNlBtllj  Mcdudtd  frain  Iba  Uuion,  by  k 
rerolntioM  in  tLe  giyrcnuiifBt.  vhich, 
,  tiioag^  powcful,  mx  oslf  to  bt  jnitiScd 
ip«iind**ls»(1arl«  thowon  which  uir 
MTotntioii  cui  1)«drfmiil#i1  wliea  llie  «alab- 
lidied  gonroment  baa  CMwd  to  ■Monpliih 
tlio  parpaiM  of  It*  ciMtioD.  But  tbovgh 
thow  9btM  w«r*  tku  cut  off  rram  ouutl- 
tulloaftl  alBIUtioti,  thtj  nor*  aot  pat,  !a 
tiMJr  iat««voan«  with  thr  ],-0TniiBtot  uid 
In  oonnwebl  Rguktions,  no  Uw  fooltng 
of  CsMlipi  Utlona ;  tiU,  on  the  othnr 
hand,  thouumoat  kindnmuid  fcrbMnuio* 
mi  oxtreiml  U  thi  exjifclatioD  that  th*7 
would  sot  long  MQtuiiM  to  iMut  the  no- 
ftMltfa*  of  ihilr  tiTnntliHi  ■nil  fwraartnln 
tluir  ndW«l  la  takd  tkrir  prujMT  plUM  b 
Uh  ADiFriou  fnoflj-.  Hildnth,  Hial.  ef 
Dmitod  8ut«^   IT.   147.   1«9  ;    Ittkin. 

HUt.ori;Bitod8«M«i,H.«s«.  a 

<t)  Th«  IbUowing  no**.  It  ritouM  bt 

.>t>t«d.  U  bjr  tlM  nlitor  of  tbi  4t)>  adiUon 

'at  tbi*  work,  Hon.  T.  H.  Cooitj i    At 

tUt  petat  it  VU.J  not  bo  fnnpimpriate, 


in  Tjow  ef  tho  dioenarioaa  uid  «ontr«Ter- 
idw  wbieh  hare  ui»n  linta  tUi  work  wm 
pnblbhod,  and  which  itlll  donand  mdm 
pnrtloQof  th«att«nlionorboth  thestat**- 
man  and  the  jliriat,  to  call  altrnlion  to 
Mttaia  |itinelplM  asd  niagca  b  American 
eonatitntional  genramta^  whidi,  thoagd 
Pertaining  nun*  pnrtlcuUftf  to  Main  tbati 
to  [tdnal  poUey,  art  nornthal***  nw**- 
urily  had  in  tlt«  when  a  comiiUta  nirrey 
of  OUT  political  tjston  i«  dodnd  nad 
■ouKht  Wn  tUudo  bue  to  the  qrtttan  «f 
local  atlf-govornmuit,  wbtdi.  In  mtpMl 
to  local  ootu«nia,  pnrailt  uiilvvtmllr. 

In  anothtr  work  the  prtnont  writer  baa 
had  ocEBiion  to  MLf,,tb*t,  "  in  tho  eiam- 
ination  cf  AnMttcan  oonaUtnllonal  kw 
ve  ahall  not  fail  to  notioo  the  oaie  takn 
and  Um  nwau  adofit*d  to  bring  tht  agtn- 
daa  bf  whfdi  poww  (*  to  bo  MCttthtd  aa 
nwaipeeaiUa  to  llwrabjMla  npon  wltidi 
the  pema  U  t«op«««ta.  In  eotttradittiiie* 
lion  to  thoM  fOMtnmtnta  abn*  pow«r 
it  foncMtnttd  la  one  man,  or  Is  ma  or 
OMTO  bodiw  of  mtn,  whoaa  tapMrudon 
and  actlfn  eontial  oxtMtd  to  all  the  olyecia 
of  gDTatnaMBt  wltUn  tbe  lorritotial  Umiu 
of  lb*  8tat«k  tbo  Anwrlcaa  tratem  ia  om 
of  OMOpMa  AertUr/itaaHim,  the  jirianary 
uid  lital  tdM  of  wfaiah  ia.  tlut  IomI  af- 


200 


lOM  OF  TQE  ITMTBD  BTi.TB3.  [bOOS  HI. 


Uncball  b«  nwiwgvd  hj  loctl  uithoritM^ 
Mid  anljr  gmenJ  afliit*  liy  thx  cpnml 
ADthorilj'.  It  wu  (indpT  llic  tuulrol  of 
tkU  Idra  thnt  n  lulioajil  CoiutilntiDU  ma 
ronntil,  luiilur  which  the  Stain,  while 
yielding  tu  tilt-  iiHilonol  goTommcst  nam- 
pUto  nnd  cxcliislvn  jurixdiclion  over  m- 
twniil  iffal™,  coiifrtmlEpon  il  miali  pow*™ 
only,  iij  rv^ri)  to  matMi  of  intcinal 
iFjiCulntioD,  ui  Ketiiinl  U>  \ie  norntial  to 
iiaticnal  uniuii,  strrngth,  iiid  harniuiiy, 
imd  miiliout  which  Ihe  purpoio  in  urg>n- 
Itinft  tlini  nallonal  nuitiority  might  have 
been  rlorratpcl.  It  ix  Mi.  nlw,  tliat  Im. 
pel*  the  iFVrral  StatiH,  us  if  liy  uuuimom 
aniingtnient,  to  lubtlivid*  tin-it  tamlory 
into  MQiitir*,  town*,  road  and  Khool  dU- 
triri*.  and  to  txaier  upon  nch  tho  jumrn 
of  lotxl  IrgltlatloD.  and  al*>  to  bttorporalc 
cities,  boraiiglii^  and  villit|tm  vhonir«r  « 
dcnto  p«fiaUtton  miairEa  iliirerrut  npila- 
tloni  ^m  tliou  irbi«h  an  ncodfnt  Car  tlw 
rnnl  >l[«tr{ct».  Thit  tjMcm  u  one  which 
•ImMt  wcow  •  put  of  thn  nry  uUnn  of 
At  nw«  to  wUoh  w*  boloDg.  A  aiuiJkr 
labdivitdon  of  tho  naUn  for  the  purpotea 
of  municipal  gAttianunt  hai  aiMed  in 
England  (nmt  Uie  aarlitct  tgiu-  Crabbe's 
Ehrtofjr  of  Engluk  Uw,  cb.  3 ;  t  Bl. 
CODun.  lU ;  tfallani'i  Uiddlc  Agra, 
(A.  8,  pt.  1  i  3  Kent,  87S:  Vaujhaut 
B«rol»[io[i>  in  F.ngliih  llittotj,  U  3,  «b. 
8-  And  ill  Aniarici  ttio  Ant  »ettk(%  a*  if 
initiDCtivnly,  idoptDil  II  ia  Oi«ir  fniin*  of 
goveniTDiiiit,  and  no  otlii*  hai  evtr  mip- 
pWitcd  It,  or  otax  found  advocat«a." 
CooliT.  CowL  lint.  IW. 

The  vTittn  «paa  o«ur  drll  polity,  'ho 
hate  catrfully  ttudiad  iU  pbilaaop)i|v  hare 
not  only  taien  notico  of  tUa  ftVMaiy  hct, 
b(it  thry  havK  faTariaUy  attrlbnl*!  to  it 
the  lilNitM*  *o  eiyoy.  De  ToofaeriU* 
diaoiusw  U  with  ckunet^  and  coulrMt* 
It  fordUy  witli  tb«  TttoA  idM  of  otattil- 
ladoM  nndtr  which  ooaoitullonal  fn-cdom 
haa  nnvr  hroonia  an  ntahUibnl  Cad. 
Ueoaonacy  In  AuMiioa,  ch.  G. 

The  ■■me  Mmpaiuon  b  made  hj  I>r> 
IJabsr.  who  ibcnn  that  a  oMlratiiBl  gm- 
mnuiilt  Thnih  tt  be  bj  itprtHntoiivB 


fttelf  choMin,  tnnat  be  de«potie.  aa  aqr 
other  r>tnn  at  crntraliiatiun  nowirtly 
ta.  Civil  Liberty  and  Sftr-Ooranunent, 
eh.  fil.  Mr.  irttenaa  is  hit  ittiNaMiit 
wrilo  thni  toafiiend  :  "  Tha  way  to  bav« 
ffoud  %iii  nfo  jcoranoMnt  b  not  to  tm«t 
ail  to  ouu,  but  to  diridc  it  among  the  nnny, 
disttibutitig  to  evrry  one  exactly  tbt  rtinc. 
tioD)  liv  U  comjHlont  to.  Lat  the  nalfanal 
^venunrul  te  inttiutad  witlk  the  defouco 
of  th«  notiuu,  and  ita  foreigB  and  feiivnil 
RktJona ;  the  Stato  gi>T«minatita  with  the 
dvll  TiKhta,  law*,  policy  and  adininl«tn- 
tionorwtrnt  coMOMti*  lh«  State  gwmllyi 
the  ooiioUn  with  the  local  vonatrn*  of  the 
oomitiea  ;  and  each  ward  dirwt  the  ioUr- 
e>ta  within  iudf.  It  ii  by  diiiding  and 
gnnbdiriitinjt  Ihn*  n^blici,  from  tbagnat 
natioTiaJ  ouv  duwii  tliroii^h  *ll  iu  mibot- 
dinationi^  nulil  it  toA*  in  th«  admiaism. 
tion  ol  ovary  man'i  fann  by  hinuelf  i  by 
placinn  und«r  trory  one  what  hb  own  tjv 
may  auiwrinlnnil,  that  alt  will  he  done  for 
the  beet.  VTbat  W  dntioyed  liberty  and 
the  tighta  of  man  in  erery  govetnmeot 
whlrli  baa  ertw  cxiattd  undtr  (be  ion  t 
The  ganenliiing  and  ooukq Inline  all 
cana  and  |io«rcn  Into  one  boily,  n«  niatta 
whatbor  of  Ih*  aalooala  ef  Ruala  or  of 
Ftancc,  oi  of  thv  arialocnU  «f  ■  Tuuetian 
Senate.  ....  The  eUnuntaiy  nfrablioi 
at  tbc  ward^  the  cooutj  fEpublicii,  the 
Slate  npnbllca,  arnt  Ihn  rtiaibtic  of  the 
tTniou  would  (oral  a  grudatioa  of  a«tlwT> 
ide%  ftaading  cadi  on  the  but*  of  law. 
holding  cTcry  ono  iti  delt^Ued  aham  el 
powan^  ani(  caMtlimlaK  Iraly  a  ^t<n  <4 
iarnhmental  balaacea  a»d  chtoka  tor  the 
govofnaaeU.  Where  ertry  man  b  a  aliarec 
la  the  dtnctloa  of  hU  ward  tepublic.  or 
of  wxne  of  the  hljhcr  ono,  and  ftcU  that 
he  b  a  i«ftkiF«tor  In  Ih*  ijDvmiaMKt  o( 
affair^  not  nierrly  at  an  alKtioai  one  day  in 
the  year,  bat  (Tery  day  ■  wbou  there  ahall 
not  baa  roan  tn  the  Stato  who ahall  Botbn 
a  BMnber  of  aMM  oB*  of  Ua  awnnib,  great 
or  etBtll,  b«  will  lot  tha  b«rt  U  toni  ool 
of  hb  body  Boonet  than  hb  t*"ar  be 
WTMted  ftoro  him  by  ■  Ccaar  or  «  Bma* 
pnrto."  LgttattoCalJcl],JoffciMn'aWoft% 


CH.  I.] 


OBItilN  AKD   ADOPnON  OP  THE  CONSTtTCTION. 


2(tt 


VI.  MS.  Ui.  Biuke  *1m  uiditaKa  Um 
dual  defect  in  the  frtnch  ijitcm  vhcu  bo 
Mj^  "Tlia  liaad  ot  anthorilr  wu  K*a 
la  avicyiliiiig  tad  in  crvrr  plitoi.  AU, 
tharrfon,  tlurt  faappnuxl  uuiia,  «mi  ia 
dan»UcMAjn,wuaUributfiI  toth«j^- 
(tnmuit ;  mod  n  u  tlwtfi  liaiiptni  ia  tliU 
kiud  of  aDtoloiM  aiitvcnal  iniarbmic*, 
oint  U^a  la  o*)iuua  fowBttmiiiiX**jt, 
I  umj  mj  tritliiout  «xcepti<)n«  in  oontcnipt- 
iUe  imbecility. "  Tiioo^tB  and  Detail* 
M  Scndty;  Work*  (Little,  Brown,  t 
Oh'*  mL  IHfiSI,  V.  1C8. 

nifKidiiig  tlie  UBiul  diriMoa  of  milbot- 
itjr  betiieca  tiia  Statia  and  the  low<7  muni. 
eiialitiw.  Da  TooqunvilU,  k]i*akitjx  of 
New  Engbiod  tovntfaip  goTrraiiicnl,  nyii 
"  tn  tba  part  ot  the  Union  the  iinpaliion 
of  iKditical  Bclicily  n*  flinn  in  the  taon- 
iib^i  and  ll  nM7  aliaoal  ba  Mdd  tlMt  each 
of  tbam  MJgumUy  Uinotd  an  indapcndeot 
Batlaa.  Whan  lb*  king*  of  England  a*- 
•crlol  tbtir  fnpTMDBcy,  tliay  irm  mn- 
Icntnl  10  aaniBB  iha  mnWl  pooar  of  the 
Btaia.  Tha  toombiiia  of  K«ir  Enftland 
nmwniMl  aa  (hay  mra  befotv,  and,  al- 

'  ibongb  they  an  now  mitgeet  to  Uu  8tat«v 
thtj  wen  at  flnt  aouoabdepandant  «poa 
iL  It  I*  Ispoftaat  to  nmembcr  tbal  Ifacy 
ban  M*  bean  tnmtad  with  tiririlagca,  bat 
lk»t  they  mm  vb  Uw  touliMy  t#  hara 
Rncadcrad  •  pnrtiMi  of  IhidT  iuilapsiid- 
anea  totbaSkla.  Tha  tomaUpa  nra  ouly 
Nbordtiiaia  t«  Ika  SUIaa  la  thoM  intarvatu 
whMi  t  ihaUiannMNialiaatlMrwaconi- 
nMni  to  all  ritiaca*.  TbayaniBdapnadanl 
b  all  ikat  eoocoma  ihimidrca ;  and  among 
tka  lahabtlMita  of  Nav  England  I  bdicro 
tkU  aot  a  maa  ia  In  bo  Ibnad  who  would 
atkaowUdgB  that  the  Slate  ba*  any  tight 
to  intatltn  ia  tbrir  local  intenata."  Da- 
mocTaey  la  Anaiica,  cL  0.  ib.  Faltny 
gOM  man  into  dtUll  i  ifKaking  of  tba 
New  Engkiid  rolauie*  oolUdiTnly,  ba 
•aya:  "Wbile  tbt  antwioi  niaKblnitai 
wm  alcoted  by  the  votaa  of  tbe  baoncn 

I  at  th*  whob  oalaay  eonatad  togatbcc,  the 
4*pnllM  wo*  choam  bf  aadi  town  by  a 

'  n^ri^  ef  Ita  roten.  ....  Tbe  Aare 
vUdi,  Ihrougli  tholr  Jahytwl  «oIm  in 


tba  gnien]  tonrt^  tiie  toarna  bad  in  the 
genanl  kKuUtlon,  waa  not  tba  ditaf  td 
Ili»  fuaetiiina  wlikli  Wlonipd  to  them. 
Tba  uiniik-iiwl  jiirudirtiDim  pmant  a  psm- 
liarity  of  the  Kicial  aptcm  o(  New  Eng- 
bad.  thiu  wbtcb  none  toon  attm^i  at  dtlt 
day  tbe  attantion  of  intrlliicmt  *ti«ng*i% 
or  ha*  had  mutv  inSuenoa  on  the  oonditMn 
and  the  tbanclcr  of  the  peopla  tfcmigh 
the  tight  gencratbu*  of  tbdr  Uate«y. 
Tlix  turrilDtT  of  th*M  SUI*<v «»))  tlie  o(> 
ik'ption  uf  that  imall  portiou  at  tha  nurtb 
vfliJcL  rrmaiiu  unoc-upied,  U  laid  «S  into 
diitricU  oi  modDialoutaat,  aad  the  inbab> 
itanta  of  aanb  form  a  little  Inly  |»litl(^ 
wilh  an  adailnlMTalioii  of  Ita  own,  «aD< 
ductal  by  oflidalii  of  iti  own  rholct,  ao* 
cording  to  it!  own  will,  within  certaia 
limila  (mpoanl  by  tbe  higher  commcoi 
authority.  WItb  wiiurtliiiii;  uf  the  tain* 
proprirty  with  which  the  Dulioo  may  be 
uid  to  be  a  oonfedirac;  of  rcpuUica 
called  SliUta,  each  Xtw  England  StaU 
tnay  ba  daaeribad  M  a  eonf«d«rary  of  minor 
npublin  called  totnu.  The  lyatnn  ia  tba 
extreme  npi-aiite  of  a  politii-al  aanttat- 
Uation.  Tu  th»  iitiuwil  vxl<nl  connitent 
wilh  tba  oonunon  aeiioii  ntid  tbe  common 
wellatv  of  tbo  aggN|[ale  ot  torn*  that 
niuke  the  Stata^  tba  town*  »av«imI1y  at* 
Finpowpreit  to  lake  ma  of  Iboee  inleraat* 
of  thoiri  which  they  mpKtively  can  beat 
nndentaad,  aad  can  woat  efficiently  and 
iniMt  (ounomlrallj  provide  for :  anil  tb«w 
are  identical  with  lhainter«el!i  ■hlcli  nroat 
directly  cmcsin  ibc  I>nUio  Mciuity,  com- 
fort,  and  monk.  Thai  it  bthn^  to  them, 
and  tbay  an  conifallad  by  gEnenl  lawa  of 
tbe  Slatn  withia  wblch  tbey  are  Mveratly 
indndcd,  to  ptotMl  the  pubtie  bralth  and 
oricc  by  nwaiie  of  a  polke  i  to  naintaia 
Mlb  and  coaiTenNet  aomnmnlcatian  aboat 
and  IhnHi^  Ihalr  pmisct*  by  road*  and 
baidgM  1  l«  fliniiah  food,  tlolhinfb  and 
*Ml(r  to  their  poea  ;  to  inorid*  for  the 
ednoation  of  all  tbctr  poor  at  tbdr  com- 
noa  abatga.  By  forca  of  thla  lattilntiou 
wmj  naa  la  Kea  Eaglaad  btlo^a  to  • 
mall  aoouBnaity  of  nei^bor*  knows  to 
the  law  at  •  corporatkn,  with  right*  and 


202 


OOK9TITUnON  OP  THS  (nOTED  STATES.  [BOOK  HI. 


llnbllltloi  M  inch,  MpaMe  of  minft  and 
nubjn't  til  Ui  Riii-il  ill  Ili«  (iiiirU  iifjiittuc, 
iu  dUputisa  willi  nay  |inrtfiui  iudlvMuHl  or 
coqiOTiiW.  One*  »  year  llie  corparaUoii 
cbooMS  tlin  ad  minUl  niton  o!  It*  «flu>«. 
ind  d«t«niiinM  tli*  knuinit  of  inonrj  with 
which  it  will  JBtrust  thum,  ninl  hu«  tbb 

iiliall  bu  ntiacd.      If  the  Sutc  Ictid*  a  gsn- 

■nl  tflx,  It  i*  th*  lawn  trauaiic*  that  miMt 
|m;  It :  >iiJ  t1i«  Sum  Aim  th«  proportion 
duo  from  Fuoli  town.  1iiiT[ii)[  it  to  thi>  town 
to  dl(tril)atc  the  burdm  of  ita  vha.n  in  tlie 
awwWBont  among  it*  own  poaplc.  Ai  to 
niattcn  of  thetr  own  Inti-mut,  ihn  towns 
pnaaDt  Uidr  p<^tIon«,  uml  m  to  nuttan 
of  gmenl  conctm  tbey  wnil  t)i(<ir  wlf  lo« 
to  tlie  ecntnl  authoriliw.  By  thdr  nugit- 
tntoi  ibej  kutcIm  a  rMponubls  luper- 
tUoh  of  tha  rlcctlona  of  olDcen  of  tha 
town,  tbe  oonnly,  the  State,  and  th«  Bik- 
tion."  And  ho  vrry  jaitlyidda;  "Tbe 
•XpatlaiMo  of  latar  tima*  dictatad  ImjiroTO- 
BMnta  of  dolall  in  the  municipal  «yM«m 
of  New  England  ;  but  ita  outline  wu  com- 
plclc  wbrn  it  wu  lint  doriaed."  Hi«t.  of 
KMrKitgUnd.  II.  11-18. 

n*  polttlut  or]pi«lntte«ii  n»d*r  Iho 

8tUa  wen  !««  parfectly  ronaad.  teaa  ona- 

I  fletalj  ««id«we4  with  corponte  lUb  aad 

vf|or,  and  braugbt  local  aSiJn  t««  g<ai«r> 

tUy  uader  local  control  In  tha  Soaibem 

oolanica  lima  in  the  Korlkem ;  but  the 

Mma  priodplo  of  de«BDlialitBtM  wu  re- 

CQ(ila*d,  tad  tbe  dlftwBi  of  kppljcatian 

<  «iuduoWadlAnnMofcii«nnMa*Ma:in 

Viifinia  the  eoatf  Wm  Uw  nnit.    80  far 

«i  tbet*  vaa  dlfttenoa  Ur.  J«Ana«  h- 

mcBtcil  t),  and  aoa^t  to  pot  m  and  to  it 

'  1m  VltKlnIa  thrauf h  a  lUtlflM  «t  tiM  ooan- 

>  tiaa  Into  handnd*.    "  ThMo  Buk  npub- 

UMk"b«aay«,  "wauMbeaaBalDtlRngtli 

■f  Iba  graat  one.     Wo  owe  to  IbMi  iba 

yigtt  ^Tta  to  OUT  Rit<roloIina  la  Ita  aam- 

sneaBMOthitbaEaatmScal**."    Lcttar 

t»  QfTtTMr  Tybr,  Jtltmoa't  Worln  T. 

9t7.    UlUcHt.JaOenoDWBahiitorittDr 

ud  Utcnity  eontrt.    Tb«  tCEettrc  nwUt- 

tMt  to  iba  Itmnila  of  IjiMiBy  In  H*« 

I  Safland  vai  threvib  llu  ImoI  mnMidpti- 

;ltia*,aad  tbt  int  bortUa  bkv  atnuk  hr 


tho  crown  ww  ainied  at  tbe  ItbortiM  poa- 
aMBad  and  citarciaad  bf  Boaton  attd  tha 
olbar  towua  In  the  mMtUfp  of  thalr  frao- 
num.      Pitkin,    Htat.  uf    Unitad  Slalaa, 

I.  S<^3ST  ;  Banorolt  Hikt.  of  UoitaJ 
Suto,  VI.  £18  1  Life  of  Sawnol  Adanw, 

II.  141.  Tho  aarllar  atlempta  under  tha 
SUurta  to  InlToduoa  atbilrary  aulhority 
through  taking  away  the  colonial  oharteia 
proTod  wholly  inoSactutI  whilo  Uis  tower 
municipal  ipivonitDaita  rcmalaad.  Wbn 
tlic  i-lmrtvr  of  Uhode  leland  wm  mwftmitA 
it  U  uid  that  "Ma  Amrieim  tyricnt  ^ 
teum  yovirmnemU,  which  nocaadly  bad 
coinpi'llinl  Bhoda  laUnd  la  tnillatn  finy 
ymn  before,  btaone  tbv  luMiit  of  pneerv- 
ing  tho  libwty  of  tb«  individual  dtisM 
«h«n  that  of  tha  Stale  or  coloiiy  waa 
cnuhed."  Araold,  BUt.  of  Bhoda  bland, 
ch.  T.  In  Maanaebnaeiia.  when  iba  nvU 
polity  had  a  theclogiGal  buij^  it  wa«  onn 
inntud  by  lb*  dapvUn  tba  to  aan«»dc« 
local  gonmment  wai  oectiary  to  tb*  Sixth 
OomnwDdmont ;  for,  aaid  tbay,  "  U*M  taajr 
not  dMUoy  thrir  polttiosl  any  bmi«  tbaa 
Ibcir  natunl  livts."  So  Uiey  ehing  to 
»lbc  drfl  )ibtrti«aor  Vew  Englaad"  M 
"  I<art  of  the  inhcritanice  of  their  bthtta.** 
PalTrey,  Hut.  of  Sim  En(tknd,  III.  301- 
309 ;  Banm-ft.  HIat.  of  Unlu.!  tttatia^  II. 
llS-lSr  ;  Hata.  Hial.  ColL  XXI.  7*-«L 
The  oonteat  with  Androa,  aa  well  in  Ktw 
Euftluid  u  in  New  York  and  tfowJanoy, 
wu  D  itnixRlo  of  Ih*  pMpI*  In  d*f*aoa  of 
tba  rl(hl  of  local  gorefMMnt.  "  Erary- 
when  tbe  people  atragglad  (or  Ibcjr  rigbta 
and  dnrrrcd  to  he  tn*."  Dunlaf^  Hirt. 
of  Kew  York,  I.  133.  8«e  Tntmbnll. 
HIat.  of  Oxnectkiat,  I.  IS. 

If  we  ^mtion  Uia  hialotkal  laoard* 
moce  ekad7  we  rintll  fiwd  that  thb  ri^ 
of  toad  ngnlation  bta  nenr  bcMi  ante* 
alood  Co  ha  a  piuiX  (row  any  oenbil  an- 
Ihoriiy,  bat  it  kaa  been  rtcopUaJ  aa  ef 
eonna  from  tbe  int :  joat  aa  Bnch  of 
roaiH^  and  jnat  aa  nuieh  a  niwaty  put 
of  tha  eitU  poH^,  ••  tbe  oaMtnl  imAet' 
byitaalf.  SonMlnMallvMonaeBd  aaraa- 
Unaa  tbe  otbar  whkb  Snt  aMnnad  fam 
end  ar|wbid  iltaUty,  bm  lb*  fnttStoa 


OH.  t.] 


ORIGIN   AND   ADOPTtOS  OP  TBE  COXSTITUTION. 


SOS 


WM  detarmincil  by  the  circumstAnos 
vhiiii  iD»d«  tlic  one  or  the  olher  tbe  more 
1^  tmmcdiua  nerd.  For  >U  practicxl  pur- 
I  tlity  niiiy  bt  ragnrdail  u  Imvln^  Imwii 
DulUUMu  In  origtai  uii]  m  haTlug 
trim  m  vnquimtiotujig  ognrietiaii 
[  tbc  peoplo  tbM  each  wm  mentUl, 
1  that  bodt  «ai«  to  nm  |walla1  to  wch 

r  faukSniUlr. 

Sack  WM  the  tyitem  wbtob  wm  toxrni 

1b  Emm  wbra  the  Confutation  of  the 

UidtH  Strtw  «ip«Md«l  the  Artidm  of 

tConMtntko.    Tbineeo  State*  wen  in 

|«)Cl«tanoe,  each  oT  which  had  Its  aubJivi- 

tor  oeuiitin,  towns  or  parishn,  ettje^ 

I  boroogtu,  and  vilkgN  ;  and  ill  tbea*  poa- 

■OB  powen  of  local  ocotrol  mote  er  Ina 

^•XtmiTe.     Tbe  mott  ol  the  SMUs  had 

•WAed  now  connituUon*  vhli^h  neog- 

j.glnd  tb««  mhdiiiiiooa,  witltout,  how- 

anr,  m  a  rale,  nakiag  tbdr  perpetuation 

In  MtpaM  tonni  iMpKailn.    Witb  tbit 

nragalticni  tbejr  mnainod  and  stUl  tHnalB 

•  patt  or  tbo  Jiniericnn  «y*tna  m  in  colo- 

nU  tlniM. 

It  may  be  well  now  to  ate  wbat  b  th« 

thaerjp  of  State  cnn«tltntlonal  law  tagatd- 

[bg  tli«K  poUtio*)  entitii*.      Ufion  Ikl* 

^■dgeet  it  ha*  notcflro  hem  nentnil  to 

\ta»mim  mj  cloMlr  ilio  limiutioua,  if 

[  tay  tktnt  an-,  upon  Stale  power,  btcanaa 

I  the  State  b>n  grnenll;  aMained  b««n  «a- 

LMtting  any  vnniual  authoritf,  and   baa 

t-«MkflMd  Itatlr  lo  tlial  tmnwRiorklly  ex- 

I'trdaed.    CmUId  prinripin,  howerrr,  have 

bran  often  hid  down  b;  the  eovrta,  to 

wbieh  allention  nay  be  bore  directed. 

1.  tht  Mm*\  |[OT*rnn)ont  ta  «n*  ot 
tmnmraitd  pmerri,  tho  Cbnilitntion  being 
^tba  mcaaon  tbtteof,  and  tb«  powtn  not 
tbenby  btinH  nattred  to  tlio 
ladlridnal  9W«a  or  to  the  paopla.  Thla 
w«  natd  not  enlaip  upon  hern,  or  clta 
Mher  aatborrtjr  tar  tban  tbe  book  bofot« 
na. 

3.  Tte  fiowfts  of  aorenigntj'  aot  tbua 

Lajigatod  nat  tn  the  people  el  tbo  Indi* 

[vtdoal  Stately  wbo  confer  the  ame   for 

'  Dtdfnarj  fxwdne,  with  nicli  eioaptlona 

ud  HmHattow  and  nndtr  ancb  regnlalioa* 


ai  Iboy  «  lie  to  c*tabli«h,  upon  the  dr. 
partntcnti  and  olMi.'(ini  of  jpirenunent 
tthlch  by  tbi>ir  cunntitution*  tbey  create 
lor  tiie  Stal«a  ^Mpcctiv^ly. 

3.  The  mntildpal  organitatlona  eier- 
cIk  a  ddqeitad  authorily  luidertke  SIaU, 
and  may  alto  ba  n^tded  ai  f^Tcminoiita 
of  tsmncnted  powrn.  The  i>tat«  lnjila 
tt*e  uithotitythapta  their  ohaitcnacoeed. 
In^  to  It*  vltiw  of  what  ia  proper  and 
politic,  and  it  detctiniMa  thalr  territorial 
•stent.  And  npon  both  tiMaa  anhJMla  It 
enrrlM*  a  discretion  lo  mUt^  diminiah, 
or  wholly  lake  away  what  It  haa  confcrml. 

In  the  rye  of  tbo  Uw  they  are  mcro 
■geucin  of  tlie  State,  omtrd  and  em* 
ployrd  (or  the  eoBvonicnce  of  ({oTomment, 
and  ibc  Siatf  may  Ihrrcfoni  wt  aaido  tbdr 
arllon  wlirn  the  [mrpote  of  tbelr  creation 
il  being  diitregaRlvd.  or  cxercue  a  oompnl- 
aoi7  aathority  over  th^m  whrnevor  dutioa 
are  negleetad  or  anwU*)y,  neglixnilly, 
0*  dIahonttUy  ptrfoitMiL  See  Booth  p, 
Woodbury.  SJ  Conn.  118  ;  Froet  a,  Btl< 
mont.  4  AUm.  IGl  ;  Pet(t>bu)](  •.  Ueli> 
k*r,  SI  III.  SCS ;  UtUna  r.  Walker,  SI 
III.  eOS  ;  Commonwnlth  *.  Fitttboi^  St 
renn.  St  48S  ;  Abondtnth  •.  OrMawlch, 
£9  Conn.  SSfl  ;  Kew  I^ndon  a.  BnlBud, 
83  Conn.  US  ;  Bailey  v.  Kew  Toek,  S  HiU, 
531 :  Peoplo  V.  Dmpor,  Ift  S.  Y.  Mi; 
Weeka  V.  Bfllwnukcr,  10  Wla.  3» ;  la- 
dianapalU  r.  CxImI,  IB  Ind.  U4  ;  Slate 
V.  8t.  Lonb  County  Court,  81  Ho.  STS ; 
St.  LmiU  r.  AUm,  19  Hol  4M;  State  ». 
Ccnnui,  »  Mo.  330 ,'  McKInt  «l  Odorn,  S 
BUiid,  407  1  HitrriMn  Jutltta  a.  Holland, 
a  Gnt.  SIT :  Milli  vl  WlUiama,  II  Irad. 
KS;  Langwortby  p.  Dnbnqstv  IS  Iowa, 
Sn  ;  Bute  K  Bnurin,  8  Zab.  4M  ;  Aapln- 
wall  r.  Cenmlaikmc^  SS  How,  Ml.  In 
noao  of  the  Statai^  kowertr,  bM  it  beea 
hitherto  vadcntood  that  whMi  a  MiiAicl)pal 
datt«i'  *u  taken  away,  tha  aserdM  of 
local  aathority  lenaJDaeed  with  11:  on  the 
contrarr,  same  general  rvla  for  lootl  gtr- 
eramcnt  haa  bam  nnlnnal ;  the  apcclal 
ohartcn  baee  only  ocnlNnd  apecUl  i<riv. 
Utge^  which  when  taken  away  reinitted 
tiM  ocvporatora  to  thair  pratlont  oondltMft, 


2M 


CONSTITUTION   OP  THE  ONITED  STATES.  [UOOK  HI. 


wUoh  WM  oiw  in  vhich  thej  cxcrdaed  un- 
der woU-niidcMood  pilnd|ilM  Uio  v»aA 
powon  of  local  nfculatioo.  For  a  StaU 
wholly  la  ulv  avsj  tnat  my  «f  iti  |«opte 
ifccat  powen  ««nld  he  not  aoljr  aniiiceo- 
dcuUd,  bat  would  b*  to  cntinly  oppoiod 
to  Uu>  oonunoD  uadenUiniUMg  of  tha  omii- 
Mr  in  wliiuh  Ilie  powon  of  gorcniiKKt 
trtra  to  b*  •ppwtioned  tad  exN«i«ed  with- 
in the  Stale,  that  iho  uithorit;  to  do  *o 
could  iitii  Jniitly  b«  wgiriliid  m  wlthiu  any 
grant  wliicli  tli«  fwopU  oT  the  Suto  have 
nude  of  the  Icgiilatii-e  aathority  to  their 
KprMViitativca.  lo  other  wonla,  Ibv  riKht 
of  lor«l  wir-KorernniMkt  it  m  iwlvtrwltjr 
UDil«nt«od  and  coDcodtd :  it>  utnise  Iim 
alwayi  been  m  entitel}'  withoat  ipKBtian  ; 
to  diiipitnin  with  It  wouM  n^quirc  «&il  >c- 
coiufilish  8u  ciiuiplrta  a  rtTolutiou  iii 
tilt  public  Kliuiiiiitntioai,  involving,  u 
ibouijhliiil  mrn  brlievo,  the  dettrnrtion  of 
th«  chinf  jirap  Mid  mpfioit  of  our  Mft- 
ilm, —  lluit  iu  pBffwutd  contiBuancc  luuat 
be  nprded  w  haiing  btcn  within  the 
MUtenplatita  of  Um  people  of  trtry  Sul(v 
whin  they  ftwneJ  theit  Conrtitution,  and 
that  ItwtnimnnI  nusl  b«  nia4  and  Inter- 
[nvtMl  aorordiiigly.  Local  wtr-gi>Tani- 
ncnt  it  cuainqomtly  matter  of  cuiuLitu- 
tioiiul  right,  anil  the  State  cannot  aboliah 
it  uid  rngulot*  tho  local  aUin  thtangh 
•gtnta  <4  ila  own  appalnlmtat. 

i.  CMiiiih««daaooqKU«lioni^  the  BU- 
nkipalittM  bar*  a  tw»-(bld  upott.  Thejr 
aio  agmlaof  th*  Stale  in  gorenunent,  and 
thej  alw  bar*  otpacUy  to  nwka  oonttacta 
and  Miiniie  property,  W  maj  h»  Medful  or 
doHMble  is  pnnding  Moh  local  WDrta- 
Imom  bt  thtir  oorponlor*  m  ntaj  li*  <aa- 
t«iaptat(4  by  tb«  bw«  under  which  tber 
*xi*t.  2  K(«t,  S7C ;  Aag.  A  A.  on  Coirp. 
f  Hi ;  Beyndda  e.  Stark  County,  i  Obiiv 
SOi.  Xt  mtn  oorporaliotti,  buying  tiM- 
Inotlng,  holding,  and  lm|iroTins  pmfwity, 
they*»  tUitbd  to  tha  aama  pratn-tlon  >a 
all  other  carpirationt,  anJ  tlia  Slate  can- 
not lake  away  what  lliey  aoiinire,  nor  de- 
Tota  to  (onlfn  uaea  that  which  Uuy  turo 
pr«vuM  (or  the  oamnicaR  «f  their  peo- 
pl*.     Daiinuiulh  CoUcp  «.  Woodwat^  t 


Wheat,  ees,  SM,  BBS ;  TniMna  v.  1^ 
inao,  18  IlL  SO.  A  chanxa  In  corpatala 
boundc  a  ■MtdifintioM  of  oorporalemdwr* 
ity,  and  wnetimaa  other  cinnunMaiMM 
toaj  niak*  it  oeceMuy  for  the  State  to  in- 
torrtna,  aad  by  vlrtaa  of  tti  aoreraigK 
poovrtotaka  ponaaHOo  of  corporBla  prop- 
erty with  a  view  t«  it«  fovpcr  apptopria- 
tion  or  dividon ;  but  when  die  ihall  do 
M^  il  will  b*  a*  InlKaa  mcMly,  and  hrr 
duty  will  be  to  tuaka  tha  apfeopriatlo*, 
not  Dthitnirily,  but  with  du«  rvgard  l»  the 
pBipoae*  ttf  ita  aeqmitiou,  *o  that  the 
r«apl«  MDCfnifd  ihall  atfll  iMp  the  facne&t 
thereof  •(>  far  aalhacitviiMUanoaa  and  tho 
natitt«  of  the  <b>i!  will  admit. 

But  while  tlio  corpontiani  exiit,  though 
the  State  may  lay  down  mlaa  for  the  ngo- 
latiou  of  Ihrfr  aJIain  and  tb*  manigttnt 
of  their  property,  it  ia  MTettbeleaa  a  part 
of  lb*  right  of  wlf>go*«tnni«nt  that  the 
INufdn  oonoamad  ahould  choow  thdr  own 
oflWra  who  an  lo  adinliiitttf  anch  nlM 
and  have  tha  on  of  tiieh  pcoparty,  wki 
Ibc  State  cannot  appoint  neb  offioR^  u 
it  night  tbuH  whoar*  to  ptrfona  dntin 
or  a  more  gonotal  nature  for  tlie  pnblte  at 
large,  inch  ai  mnitartqg  or  diB;ipUi>itig 
thu  State  militia,  enTotdng  the  State  health 
and  poUo*  law%  and  tha  like.  See  VTarwr 
r.  Faofl1^  S  Dmio,  975;  Faopin  v.  IlUke, 
tt  Barb.  9 ;  8UU  *.  Kaiiyon.  7  Ohio, 
a.  S.  &!«. 

Such  w*  believe  to  be  the  true  doeliine 
tvgwdlog  tbaae  nnaldiialiitM.  1n*laMi« 
hare  peihafB  ooaumil  in  which  lagiaUtir* 
boditgh  under  tha  Utkf  ibal  IntMfsmKo 
in  local  mattan  wsa  eacnlial  (o  the  cor- 
nctios  of  local  ahuaea,  bare  diotgardad 
the  nnnl  boiinda  which  limit  tbtir  actio* 
ia  thi(  dirroticM,  and  taken  npoa  Ihm- 
aelrta  the  parfonuanc*  of  datic*  not  pcop- 
erty  pcctaining  to  the  tenlnl  authoKty. 
Whether,  if  tbb  ndgbt  rightfully  be  done, 
it  would  be  likely  to  mntt  In  oorreeting 
mor*  abiMC*  than  it  wodU  <*«at^  fa  nut 
for  u  to  *{>«<inlaio  ;  11  la  elMwgb  that  vir 
inatilutioai  itBl  <i]»n  an  anYptanco  at  the 
doiTlriBe  that  mall^ra  purtly  local  an  boi^ 
mart  ewwMiiiorily,  bonaatly,  and  offieiently 


CE.  I.  j 


OBionr  ihd  adoption  of  the  coNartTDnoii. 


205 


numi^  b;  ths  people  immadiktslj  con- 
eernad,  who  cut  lee  and  knov  Mid  com- 
prehend uid  penoiuUl;  raperriee  Ukid, 
•nd  that  the  local  oonunimitieB  ehoald  be 
expected  to  rely  upon  themaelTei  tor  the 
eomctioQ  of  local  cTJla,  and  not  upon  any 
diitant,  imperfectly  infoimed,  and  ilightl; 


interested  body,  which,  while  open  to  the 
iame  temptotioii*  m  the  local  authoritiee, 
would  be  neither  nnder  the  like  reetraint 
of  intereat,  nor  inbject  to  have  its  doinga 
ezpoead  to  the  same  watchfnl  obaervatiim 
of  the  partie*  concerned.    C. 


206 


QX   OF  THE  UNITED  STATES.  [dOOK  DI. 


CHAPTER  n. 


OIUKCTIO.VS  TO  THE  CONSnTCTION. 


§  281.  Let  it  not,  however,  be  supposed,  that  s  Constitntioit, 
which  is  now  looked  upon  with  such  gcnvral  t&ror  and  affection 
by  the  pc-oplf,  had  no  difficuttiv*  to  encounter  at  ita  birth.  The 
hiatory  uf  thuM«  times  Is  full  of  melancholy  instruction  on  thin 
subject,  at  once  to  admoniah  us  uf  past  daogcni,  and  to  awaken 
us  to  a  lively  8cns«  of  the  nt'ccssity  of  future  vigilance.  The 
CoDHtitutiuD  was  adopted  unanimously  by  Goor^gia,  Now  Jersey, 
ai»]  Delhw-arc.  It  was  supported  by  large  majorities  in  Pvnnayl- 
vanin,  Connecticut,  Maryland,  and  South  Carolina.  It  iras  car- 
ried in  the  other  States  by  small  majorities,  and  especially  lo 
Massnchuactts,  New  York,  and  Virginia  by  little  morv  than  a 
preponderating  vote. '  Indeed,  it  is  believc<l  that  in  each  of  tlicse 
States,  at  tbe  first  assembling  of  the  conventions,  there  was  a 
decided  majority  opposed  to  the  Constitution.  Tlie  ability  of  the 
debater,  the  impending  evils,  and  the  absolute  ncce-ssity  of  the 
case,  seem  to  have  reconciled  some  persons  to  the  adoption  of  it, 
whose  opinions  had  been  strenuously  the  other  way.^(a)  "In 
oar  endeavors,"  said  Washington,  "to  establish  a  new  general 
government,  the  contest,  nationally  txinsidered,  seems  not  to  have 
been  so  much  for  glory  as  for  exislcnco.  It  was  for  a  long  time 
doubtful  whether  wo  were  to  aurvive^  as  an  independent  republic, 
or  decline  from  our  Federal  dignity  into  insignificant  and  with- 
ered fragments  of  empire."  • 

§  iS'i.  It  is  not  dilBcult  to  trace  some  of  the  more  important 
causes  which  Ivd  to  so  formidable  on  opposition,  uud  made  the 
ComtUiution  at  tlint  time  a  theme,  not  merely  uf  panegyric,  but 

1  a  Pltk.  Hkt.  to.  208,  tn.  379;  381;  North  Amtt.  Her.  OeL.  ISST,  Vf.  \t6 
to  378. 

*  2  Pilk.  Hitx.  SCO.  349.  SSI;  S  Mjutk.  Lift  of  Vuk.  183,  ISS,  188. 

*  $  lUnWl'i  LUb  ut  Vailupetaa.  1S8. 

(a)  Sm  BiT««.  UTo  of  Uaiioa.  ch.  SC;     90;   Tu    Bnm,  PaUUetl    PMtiM,    S7 : 
BiMBMod.    Foliliotl    Hlitocr    of    Nt»    Autln'*  Uf*  of  Otny,  IL  cfc.  3  aod  8. 
York.  <k  1;  life  ol  SudimI  Mud*,  th. 


CB.  n.] 


OBJBCnONS  TO  TUB  COKSTITUTION. 


207 


ot  severe  invectivQ,  aa  fraught  wiUi  the  most  alonniog  dmngen 
to  public  liberty,  and  at  onec  uni'qual,  unjuat,  uod  opprcwive. 

§  263.   Almoat  contcmporanoously  with  th«  tint  proposition 

for  ft  cmifcderetion,  jculouaica  bv^ii  to  bo  eatertaiuctl  in  respect 

to  the  nature  and  extent  of  the  authoritvjrtLiclL£hiiuld-bc-CJL££=_ 

Ljiiaed  T>y  tjienatiMrar  govcruiuent.      The  large  States  would 

Lnatumlly  feel  tliil  iu  proportion  as  Coii|iTe«s  sliould  exercise 

leovereign  powers,  tJieir  own  local  imimrtance  and  sovereignty 

Ivould  be  diminished  injuriously  to  their  general   influence  on 

other  States  from  their  strength,  population,  and  character.     On 

the  other  hand,  by  ao  opposite  course  of  reoisoning,  the  small 

States  had  arrived  noarly  at  the  same  result     Their  dread  seems 

to  have  been  Ifist  they  should  bo  swallowed  up  hy  the  power  of 

the  large  States   in  the  general   government,   througli  common 

combinations  of  interest  or  ambition.' 

§  284.  There  was,  besides,  a  very  prevalent  opinion  that  the  in- 
terests of  the  several  States  were  not  the  saoie;  and  th<>re  had 
been  no  sufficient  experience  during  their  colonial  dependence  and 
intercommunication  to  settle  such  a  qucfilion  by  any  p^nerat  rea- 
soning, or  any  practical  results.  During  the  period,  therefore,  in 
which  the  confederation  was  under  discussion  in  Coogress,  mncb 
excitement  and  much  joalousy  were  exhibited  on  this  subject. 
The  original  draft  submitted  by  Or.  Franklin,  in  July,  1775, 
contained  a  much  more  ample  grant  of  powore  than  that  actually 
adopted;  for  Congrt'sa  wore  to  be  invested  with  powei;  to  make 
ordiouuces  relating  "to  our  general  eommerce  or  general  cur- 
rency," to  establish  posts,  &C.,  and  to  possess  other  important 
powers  of  a  different  character.'  The  draft  submitted  by  Mr. 
Diokeitson,  on  the  12th  of  July,  177C,  contains  less  ample  pow 
crs,  hut  still  more  broad  than  the  Articles  of  Confederation.* 
In  the  sulwciuent  discussions  few  amendments  were  adopted 
which  were  not  of  a  restrictive  character;  and  the  real  diflicul- 
ties  of  the  task  of  overcoming  the  prejudices,  and  southing  the 
fears  of  the  different  Stat4.>a,  are  amply  displayed  in  the  secret 
jotlmals  now  made  public.  In  truth,  the  continent  soon  became 
dividvd  into  two  grtat  political  parties,  "the  one  of  which  oon- 
tcmplalod  America  as  a  nation,  and  labored  incessantly  to  invest 

)  5  lUnlMir*  Ur«  «f  W.AlnctOD,  ISO,  ISli  1  lUlot'i  lM»tm,  Ao. 
■  1  Secnt  JMmali,  385.  Art.  y 

•  u.,s»o. 


208 


cONBTmrriON  or  TaB  trsrre»  states.         [book  m. 


the  federal  bead  with  powers  competent  to  the  preserrataon  of 
tbo  Union;  the  other  attached  itaelf  to  the  State  authorities, 
viewed  all  the  powers  of  Congrnas  with  jcilIoubt,  imd  aascnted 
reluctantly  to  measures  which  would  enable  the  head  to  act  in 
any  renpect  indepndently  of  the  members."'  During  the  war, 
the  ncce»siliea  of  the  country  coufined  the  oporiitiona  of  both 
parties  within  cumporatiTcly  narrow  limitit.  But  tlic  return  of 
peace,  and  the  total  imbecility  of  the  general  goTcmnient,  gave, 
OB  vc  have  scon,  increased  actirity  and  conGdcooo  to  both. 

§  285.  llie  differences  of  opinion  betweea  these  parties  were 
too  houciit,  too  earnest,  and  too  deep  to  be  recoociled  or  sur* 
rendered.  They  equally  pervaded  the  public  councils  of  the 
States  and  the  private  intercourse  of  social  life.  They  became 
more  warm,  not  to  ssy  violent^  as  the  contest  became  mure  cloee 
and  the  exigency  more  appalling  They  were  inflamed  by  aaw 
causea,  of  whicli  some  wore  of  a  permanent,  and  some  of  a  tem- 
porary eharaeU-T.  The  field  of  urgimicut  wm  wide ;  and  osperi- 
cncc  had  not  us  yet  famiahecl  tbo  advocates  on  cither  side  with 
such  a  variety  of  political  t««t(i  aa  were  caleuluted  to  satisfy 
doukta,  allay  prejudices,  or  dissipate  the  fears  and  illusiuns  uf 
the  imagination. 

§  286.  In  this  stato  of  things  tbo  embarrassments  of  the  coun- 
tr}'  in  its  financial  cotioems,  the  general  i)Ocuiiiary  distress  among 
the  people  from  the  exbanstiug  operations  of  the  war,  the  total 
prostration  of  commerce,  and  the  languisliing  unthriftinvss  uf 
agriculture,  gave  new  impulses  to  the  already  marked  political 
divisions  in  the  legislative  councils.  Efforts  were  made,  on  one 
side,  to  relieve  the  pressure  of  the  public  calamities  by  a  resort 
to  the  issue  of  paper-money,  to  teuder  laws,  and  instalment  and 
other  laws,  having  for  their  object  the  postponement  of  the  pay* 
mcnt  of  private  debts,  and  a  diminution  of  the  public  taxes.  On 
the  other  side,  public  as  well  as  private  creditors  became  alarmed 
from  the  increased  dangers  to  pro]>erty,  and  the  increased  facility 
of  per|*ctratiog  frauds  to  the  dcatructiun  of  all  private  faith  and 
credit  And  they  Insisted  strenuously  upon  the  establishment  of 
a  government  and  aystem  of  laws  which  should  preserve  the 
public  faith,  and  redeem  the  country  from  that  ruin  which  slwai-s 
follows  upon  the  viutation  of  the  principles  of  justice  and  tliQ 
moral  obligation  of  coQtracta.     '^At  length,"  we  are  told,*  "two 

>  6  Mmh.  lit*  of  WHUaftm,  39-  ■  «  9  Hanb.  Ufa  of  WMhingtieii,  O^  i 


CB.  n.] 


OBJECnOira  TO  THE  C0S8T1TUTI0!!. 


209 


fjeat  partira  Terc  formed  in  every  SUtc,  which  were  distinctly 
marked,  and  which  pursued  distinct  oltJL-cta  with  systematic  ar- 
ranftcmcnt  Tint  one  stni^'i^lcd  with  uualMted  zeal  for  tho  exact 
obsorvuiice  of  public  imd  pri\-»t«  (rU|nt^moikt«.  The  distrcwvs  of 
individuals  were,  they  thoufdit,  to  be  allcvintod  by  industry  and 
fnif^lity,  and  not  by  a  relaxation  of  the  laws,  or  by  a  SAcrilivo  of 
the  rights  of  others.  Hiey  were  conseiacntly  uniform  friends  of 
a  regular  administration  of  jostico,  and  of  a  vigurous  course 
of  taxation,  which  would  enable  the  State  to  comply  with  lis  cn- 
gagcnxMits.     Hy  a  natural  association  of  ideas,  tliey  were  also, 

'vith  very  few  exceptions,  in  favor  of  enlar^ng  the  powers  of  the 
federal  government  and  of  enabling  it  to  protect  the  dignity 

.and  character  of  the  nation  abroad,  and  its  interests  »t  home. 
The  other  party  mnrked  out  for  itself  a  more  indulgent  couraei 
They  were  uniformly  in  favor  of  relaxing  the  administration  of 
jufilirc,  of  affording  facililica  for  the  payment  of  debts,  or  of  kus- 
peading  their  collection,  and  of  ri'iiiittiiig  taxes,  llie  some 
ie  of  opinion  led  them  to  rceist  every  attempt  to  transfer 
from  their  own  hands  into  those  of  Congrrss  powers  which  were 
by  others  de«u)od  essential  to  the  preservation  of  tike  Union.     In 

'many  of  the  States  the  party  last  mentioned  mnstitiited  a  decided 
majority  of  the  people,  and  in  all  of  them  it  was  verj'  jjowerful." 
Htich  is  the  language  of  one  of  our  best  historians  in  treating  of 
the  period  immediately  preceding  the  formation  of  tJie  Constita- 

^t)0^  of  the  United  State*.' 

§  2H7.   Without  supposing  that  the  parties  here  alluded  to  wore 
in  all  respectA  identified  with  those  of  which  wc  have  already 

I  (pokca,  as  contemporaneous  with  the  confederation,  it  is  easy  to 

Iperocire  what  prodiKiotm  means  w(>ro  already  in  existence  to 

^oppose  a  new  constitution  of  government,  which  not  only  traos- 
ferred  from  thejltatcs  some  of  the  higbcat  sovereign  prerogatives, 

/EuTTnid  prohil'iliona  upon  tjio^^xereise  of  other  powers  whici 

'  frttil^  that  liiuc  1»  pfimteiisinfi  <;ip^f  1«ptihw 
der,  indued,  Is  not,  under  such  circumstanocs,  tliot  the  Constitu- 
tJOD  should  have  encountered  the  mmi  ardent  op]>o»itiou,  but 

"that  it  slKjtild  over  huve  l>eon  adoptiKl  at  all  by  a  ninjority  of  tho 
States. 

§  288.    In  the  con\'cntion  itself  which  framed  it  there  was  a 
great  diversity  of  judgment,  and  upon  some  rital  subjects  an  in- 

iSMatwSU>nhAU'>lil««f  WwluiigtM,  IH^  ISl. 
vol..  1.  —  U 


210 


oossrrnmos  op  toe  trarrEo  btates.        [book  in. 


tenae  and  irreconcilablo  hoetilitjr  of  opinion.'  It  is  undentood 
that  at  aereral  periods  tlio  convention  w«ro  upon  th«  pc^t  of 
breaking  up  vithuut  nt'compIiohiD^  anything.*  in  tbo  State 
conventions,  in  which  tlic  Cou»titutiun  wiut  pn.>scut«d  for  ratifi- 
cation, the  debates  wen;  louj;  and  animated  and  eloquent;  and, 
imperfect  as  the  printed  cullectiona  of  thiwo  debates  um,  enough 
remains  to  establiah  tti«  consummate  abilit}-  with  which  everj  part 
of  tlie  Constitution  was  siicocitsivel}'  attacked  and  defended.*  (a) 
Nor  did  tlio  struggle  end  here.  The  parties  which  were  then 
formed  continued  for  a  long  time  nfterwards  to  1>e  known  and 
felt  in  oiir  Ic^slntire  and  other  public  dclil>Gration8.  Perhaps 
they  have  never  entirely  eeaiHH]. 

§  280.  Ferhapa,  from  the  very  nature  and  oi^niKation  of  our 
government,  being  partly  federal  and  partly  national  in  ila  ehar- 
aoter,  whatever  modificationa  in  other  respects  parties  mar  on- 
dergo,  there  will  forever  continao  to  be  a  strong  line  of  division 
between  those  who  adhere  to  the  State  governments  and  thoso 
who  adhere  to  the  national  government,  in  respect  to  principles 
and  policy.  It  was  Umj^  at^o  remarked  that  in  a  contest  for 
power,  "  the  body  of  the  [>foplo  will  always  be  on  the  side  of  tho 
State  governments.  This  will  not  only  result  from  their  lovo  of 
liberty  and  regard  to  their  own  safety,  but  from  thestronK  prin- 
ciples of  human  nature  The  State  governments  operate  upon 
those  familiar  personal  concerns  to  which  tho  sensibility  of  io- 
diriduals  is  awake.  The  distribution  of  pri\'ato  justice  in  a' 
great  measure  Ijclonging  to  them,  they  must  always  appear  to  tho 
sense  of  the  people  as  the  immcdiato  gtwrdiaos  of  their  rifj^its. 
They  will  of  course  have  the  strongest  hold  on  their  attachment, 
respect,  and  obedience."*  To  which  it  mar  bo  added,  tliat  the 
State  govcniments  must  naturally  open  an  easier  field  for  the 
operation  of  domestio  ambition,  of  local  interests,  of  personal 

>  3  Pitk.  HIM.  815  to  ISO;  Dr.  rnntklln'i  Sp**A.  i  Kmtr.  Miiatum,  Ml.  SH;  S 
Amor.  Miutnia,  i%  6«,  TH,  IS7,  HO,  SM;  t  Rtliut'*  DtImIn.  Thrat  fiipmbtn  of  tiM 
oui*piiliOD,  Mr.  Omy  of  UnaMliiiatlU,  uid  Ur,  U—on  and  Hr.  BaniUdfdi  at  Va- 
gfaiia,  JtwliiMil  rigning  tlio  Conwlnitiini.  3  Anwn  UoMim,  Sft.  Sco  abo  Mr.  J«y's 
Ltttw  in  I'STi  S  An«r.  Hmmto,  CSI  U  M&. 

■  G  MuihoII'*  I.UB  et  Vtuhingloa,  12S. 

•  I  Pllk.  HUt.  9U  to  2S3. 

*  G«m.  Haniiltim't  ^wtxh  in  ITMi  1  AaMT.  lliUBan,  US,  417.  8m  ■!•>  Hip  Fed- 
tniUt.  Sm,  it.  si.  i\  40. 

(a)  BItm'i  Lift  or  HadiMa,  cL  S3  to  8«. 


CH.  n.] 


oaiBcnoifs  TO  the  ooKSTrrirnoN. 


211 


popularity,  and  of  fiatberiiig  influcnci;  to  those  who  have  no  eager 
de«)ro  for  a  wide8pr««<l  fame,  or  no  acquirements  to  jiwlify  it 

§  290.  On  (he  oth<:T  hand,  if  the  vot(Lrii<8  of  the  national  gov- 
ernment arc  fewer  in  number,  thi-y  aro  likcty  t«  enlist  in  its 
fftvor  men  of  ardent  ambition,  compn.>hi'U8ivo  views,  and  power- 
ful genius.  A  love  of  th«  Union,  ft  seniw)  of  its  importuncc,  nay, 
of  its  necessity,  to  secure  permoncuco  and  safety  to  our  putitical 
liberty;  a  consciousness  that  the  powers  of  the  national  Consti- 
tution are  eminently  calculated  to  preserve  peace  at  home  ajid 
dignity  abroad,  and  to  give  vahic  to  property,  and  system  and 
hannony  to  the  great  interests  ol  agriculture,  commerce,  and 
manufactures;  a  consciousness,  too,  that  the  restraints  which  it 
imfiosoii  iijion  the  Staton  are  the  only  efficient  means  to  preserve 
public  and  private  jiistici^,  and  to  insure  tranquillity  amidst  the 
conflicting  interests  and  rivalricH  of  the  Stated, — ^  these  will 
doubtlesn  combine  many  Boher  and  reflecting  minds  in  its  sup- 
port If  to  thia  number  wo  add  thoens  whom  the  larger  rewards 
at  fame  or  emolument  or  influence,  ccnmocted  with  a  wider 
Bphere  of  action,  may  allure  to  tbo  national  councils,  there  is 
much  reason  to  presume  that  the  L'nitm  wilt  not  be  without 
resolute  friends. 

§  291.  This  view  of  the  subject,  on  cither  side  (for  it  is  the 
desire  of  the  commentator  to  abstain,  as  much  us  possible,  from 
mere  private  political  six^eulation),  is  not  without  its  consola- 
tions. If  there  were  but  one  consolidated  national  government 
to  which  the  people  might  look  up  fur  protection  and  sup])0rt, 
they  might  in  time  relax  in  that  vi^lance  and  jealousy  which 
seem  so  ueticssary.  to  the  wholesome  growth  of  republican  institu- 
tioui.  If,  on  the  other  hand,  the  8tato  goveniments  could  en- 
groM  all  the  affections  of  the  people,  to  tlte  exclusion  of  the 
national  government,  by  their  familiar  and  donM>stio  regulations, 
there  wotildlw  danger  that  the  Union,  constantly  weakened  by 
the  distance  and  discouragements  of  its  functionaries,  might  at 
last  become,  as  it  was  nnder  the  confederation,  a  mere  show,  if 
not  a  mockery,  of  soverpJirnty.  So  that  this  very  division  of  em- 
pire may  in  the  end,  by  the  blessing  of  Providence,  Iw  the  means 
of  perpetuating  our  rights  and  liberties,  by  keeping  alive  in  every 
State  at  once  a  sincere  love  of  its  own  goremincnt  and  a  love  of 
the  Union,  and  by  cherishing  in  different  minds  a  jealousy  of 
each,  which  shall  check,  as  well  as  enlighten,  public  opinion. 


212 


coxsTiTtrnoit  op  tbb  tiKirsD  btatbs.        [book  m. 


§  292.  Th«  objections  raised  against  the  oiloption  of  the  Con- 
stitution were  of  very  different  nnturcs,  and,  in  somo  itutuoocs, 
of  entirely  opposite  characters,  lliey  will  be  found  einbodiiil  in 
rariouD  pul>lic  documents,  in  the  printed  opiaions  of  di«ti uguixhed 
men,  in  thi;  dfihateo  of  the  respective  State  oonrentioiui,  and  in 
a  Btili  more  authentic  shape  in  the  numerous  aniendments  pro- 
pOB«d  by  these  conventions,  and  accompanying  their  acts  of  ratifi* 
cation.  It  is  not  easy  to  r«diic«  them  all  into  general  heads; 
but  the  most  material  will  hero  be  enumerated,  not  only  to  ad< 
moiiish  us  of  the  difficulties  of  the  task  of  framing  a  general  gov- 
ernment, but  to  prepare  us  the  bettor  to  uuderatand  and  axpound 
the  Constitution  itscU. 

§  298l  Some  of  the  objections  were  to  the  supposed  defects  and 
omissions  in  the  instrument;  others  were  to  the  naturu  and  ex- 
tent of  the  powera  conferred  by  it ;  and  others,  again,  to  the  fnu- 
damentsl  plan  or  scheme  of  its  or^nizstion. 

(1)  It  was  objected,  in  the  first  place,  that  the  echemo  of 
govommvnt  was  radically  wronfi:,  because  it  vaB  not  u  confed- 
eration of  tlio  States,  but  a  f^jvcmnictit  over  individuals.^  It 
was  said  that  the  federal  furin,  wbit^'h  rCRHrils  the  Union  as  a 
confederation  of  soTcrcign  States,  ought  to  have  been  preserved; 
instead  of  whioh  the  convention  had  framM)  a  naltitnul  iiovem- 
ment,  which  regards  tlic  Union  as  a  consolidation  of  8talca.' 
This  objection  was  far  from  being  universal;  for  many  admitted 
that  there  uiitrht  to  be  a  government  over  individuals  to  a  certain 
extent  but  by  no  means  to  tjic  extent  proposed.  It  is  obvious 
that  this  objection,  pushed  to  its  full  extent,  wont  to  the  old 
question  of  the  confederation,  and  was  but  a  rcargumeut  of  the 
point  whether  there  should  exist  a  national  govcrnniout  adequate 
to  the  protoction  and  support  of  tho  Union.  In  its  mitigated 
form  it  was  a  mere  question  as  to  the  extent  of  powers  to  be  con- 
fided to  the  general  gnremment,  and  wan  to  be  clattAed  accM^- 
ingly.  It  was  urged,  however,  with  no  inconaidenil)lc  force  and 
emphasis;  and  its  sapporters  predicted  with  confidence  that  a 
government  so  organized  would  soon  become  corrupt  and  tyran- 
nical, "and  absorb  the  legislative,  cxecuti>v.  and  judicial  |)owers 
of  the  several  States,  and  produce  from  their  niins  ono  ooiwoti- 
dated  government  which,  from  the  nature  of  things,  would  bo  an 

1  Thn  Fcdcrmltft.  No*.  SS,  SO  :  9  Ani*r.  HtunaiE.  ttZ  ;  H.  StS,  SIS. 
■  The  r«d«i>lbt.  Ho.  »;  M.  No.  »;  3  Ptth.  HM.  270,  S73. 


CH.  U.] 


OBJKCTioKs  TO  THs  oomrnunoH. 


218 


iron-lianded  dcspotigm,"'  Uniform  experience,  it  waa  aaid, 
had  dfinoiutniteil '  "'tliat  A  very  extenBlvo  territory  cannot  be 
governed  on  the  principles  of  fi-ecdoui  otlicrviBt  than  hy  a  con- 
federacy of  republics,  poescAsiug  all  tlie  powers  of  internal 
)n>vL'mmcut,  but  united  in  the  mau^emcnt  of  their  general  and 
foreign  cuuecrtu. "  '  Indeed,  any  »chciue  of  a  geneml  government, 
however  guarded,  appeared  to  some  minds  (which  poMcs»<»l  the 
public  conTidonce)  ito  entirely  impracticable,  by  reason  uf  the 
extensive  territory  of  the  United  States,  tliat  they  did  not  hesi- 
tate to  declare  their  opinion  that  it  would  be  deatructive  of  the 
oiril  lilierty  of  tiie  chi?Ains.* (a)  And  others  of  otjual  emiueuce 
foretold  that  it  would  commence  in  a  moderate  aristocracy,  and 
end  eitlier  in  a  monarchy  or  a  corrupt,  oppressive  aristocracy.' 
It  was  not  denied  that,  in  form,  the  Constitution  was  strictly 
republican;  for  all  ita  powers  were  derived  directly  or  indirectly 
from  the  people,  and  were  a<lministered  by  functionaries  holding 
their  offices  during  plea«uns  or  for  a  limited  period,  or  during 
good  beharior;  and  in  these  respects  it  bore  an  exact  similitude 
to  the  State  govemmonta,  whose  republican  character  hod  never 
been  doubted.  • 

I  S04.  But  the  friends  of  the  Constitution  met  the  objection 
tif  tMCrting  Uie  i»dis|>ensable  necessity  of  a  fonu  of  goYemment 
like  that  proposed,  and  demonstrating  the  utter  imIwciUtr  of  a 
mere  cooCederation,  without  powcra  acting  directly  apon  indi- 
viduals. Tiiey  conaidered  that  the  Constitution  was  partly 
federal  and  partly  national  in  its  character  and  distributitMi  of 
powera.  In  ita  origin  and  establiahmL'nt  it  was  f<^'dvruL'  In 
some  of  ita  relatitnta  it  was  federal,  in  others  natioual.  In  the 
ftwiate  it  was  federal ;  in  tiio  House  of  Representatives  it  was  ua- 
tional ;  in  the  executive  it  was  of  a  compound  character ;  in  the 
Operation  of  ita  powers  it  was  national ;  in  the  extent  of  its  pow- 

*  Addrtw  of  tbe  UinoHty  «f  Psiuu  ConrMtion.  1  Abht.  MiMcam,  0)2,  6*3.  8m 
■bo  i  Piik.  nut  STS,  -ITt. 

*  2  Anur.  Mmmu,  M.  ■  8m  alM  3  AntN.  Ubmiub,  *i%  tft,  4St. 

*  TalM  Mil  Luutn^*  Cwter.  S  Awr.  HoKdin,  Itt,  U7;  Mr.  Jay*  Lrttar.  ITftT. 
S  Amh.  Hvmwii,  SS4,  M7.  Tb*  (un*  ah^MikD  i*  nfiwtttllj  tak<n  notlc«  «f  ta  tb« 
F«Jiwlirt,  M  ou  lh(B  bcpiMiiig  to  b«  ptmklnt.  ^b  f  nlenliu,  Ko*.  1,  9;  9.  1I| 
l«.St. 

*  Mt.  (hM|f  MuMi't  Lrtter,  S  Amor.  Uiweuni,  Ul.  030. 

*  Tlio  rmbnUkt.  Ko.  99.  *  U. 

(>)  Life  at  SrsimI  Acbutu,  III.  301. 


214 


COKSTtlimON  OF  TBB  DNtTED  8TATSS.  [dOOK  HI. 


era  federal.  linctcd  on  Individuals,  and  not  on  States  mereljr. 
But  it«  powers  wi-n>  limited,  and  Il-U  a  lar;^  mass  oF  sovereignty 
in  th«  Stut««.  In  making  ttmoudmcuts,  it  was  also  of  a  com- 
pound i^liumutcr,  rc<]uirlng  tlio  concurrence  of  more  tliau  a  ma- 
jority, and  loss  than  the  whole  of  the  Hiates.  So  tliat  on  Uie 
whole  their  conclusion  was,  that  "the  Coiistitutinn  i»,  in  strict- 
ness, neither  a  national  nor  a  federal  Constitution,  bnt  a  compo- 
sition of  both.  In  its  foundation  it  is  federal,  not  national;  in 
the  sources  from  wliicli  the  ordinary  powers  of  the  government 
are  drawn,  it  is  partly  federal  and  partly  national ;  in  the  oper- 
ation of  these  powers  it  is  national,  not  federal;  in  the  extent 
of  them,  again,  it  is  federal,  not  national ;  and,  finally,  in  the 
authoritative  mode  of  introducing  amendments  it  is  neither 
wholly  federal  nor  wholly  nutioaal."' 

§  295.  Time  has  in  this,  as  in  many  other  respects,  assua(^d 
the  fears  and  disproved  the  proplicoica  of  the  opjwuents  uf  the 
Const ilutioii.  It  has  gained  friends  in  its  progress.  The  States 
still  flourish  under  it  with  a  salutary  and  invigorating  energy; 
Mid  i(s  )>oirer  of  direct  action  U]>oa  the  people  has  hitherto 
proved  a  eonmiou  blessing,  giving  dignity  and  spirit  to  the  gov- 
emmeot  adequate  to  the  exigencies  of  war,  and  preserving  us 
from  domestic  dissensions  and  uareasonable  burdens  in  tioMS 
of  peace. 

§  296.  (2)  If  the  original  structure  of  the  goverrmient  was, 
OS  has  been  shown,  a  fertile  source  of  opixjsition,  another  ob- 
jection of  a  more  wide  and  imposing  nature  was  drawn  from  the 
nature  and  extent  of  its  powers.  This,  indeed,  like  tlie  former, 
gave  rise  to  most  animated  discussions,  in  which  reason  was  cm* 
ployed  to  demonstrate  the  mischiefs  of  the  system,  aixl  imagi- 
nation to  portray  them  in  all  the  exaggerations  which  fear  and 
prophecy  could  invent.  looking  back,  indeed,  to  that  period 
with  the  calmnoHs  with  which  a'e  naturally  revnew  events  and 
occurrences  which  are  now  felt  only  as  matters  of  history,  one 
is  sur|iris<.-d  at  the  futility  of  some  of  tlie  objections,  the  absurd- 
ity oi  others,  and  the  overwrooght  coloring  of  almost  all,  which 


>  Tha  PadnMlUl.  ^o.  S».  Sm  ftko  1  Tnckar'a  n*rk.  App.  145.  1*9.  Th*  >h<)U 
mMuing  oentabwl  in  Uif  SMh  nambn  at  Um  FMlcnIitt  (or  wlikb  lh«  tlion  u  tntnly 
ft  wiii—ryl  itexma  «  tborougfa  nkmiiwtiaa  by  t-mj  «Ut«an>n-  S««  kin  on  tlie 
M]nenb}ca.  Dana'*  Apr  S  II,  ^  U,  AcifSS.  p.  «t,  ke.;  1  TOckta'i  Black.  Cmna. 
An^  lis,  b.i  the  FwlMlkt,  So.  Hi  3  D»U.  B.  473. 


ca.  n.] 


OBJBCTIOXS  TO  TQE  CONSTITUTIOK. 


215 


were  uif^-d  on  this  licud  aguiiiat  tlio  Coiutitution.  That  aome 
of  Uivut  liul  ft  jiwt  fouiidatiou  need  not  b»  denied  or  concealed ; 
for  the  i!iv4t«!iti  vras  huiuaii,  and  the  roKiiIt  uf  compruiniiuj  and 
ooucilitttioii,  ill  which  soinelliiiig  of  ciirre<;tuL4»  uf  theurjr  was 
yielded  to  the  interests  or  prejudices  of  particular  States,  and 
BOniething  of  inequality  of  benefit  Vime  for  the  common  ROod. 

$  2i)T.  The  objectiona  from  ditfereiit  quarters  were  nut  only 
of  different  degrees  and  magnitude,  but  often  of  totally  opposite 
natures.  With  aome  porsons  the  mans  of  the  powers  was  a  for- 
midable ohjcction;  with  othera  the  distribution  of  those  powers. 
With  some  the  equality  of  vote  in  the  Senate  was  esceiitionable ; 
with  others  the  inequality  of  repreaenlalion  in  the  House.  With 
some  the  power  of  rc|(ulating  the  tiinea  and  places  of  elections 
was  fatal;  with  others  tlie  power  of  regulating  coniuKrce  by  a 
bare  majority.  With  aomtJ  the  power  of  dirtt^  taxation  was  au 
intolerable  grievance;  with  oUiera  the  power  of  indireet  taxa- 
tion by  duties  on  im[K>rta.  With  some  the  restraint  of  the  State 
legialatiires  frtun  laying  duties  upon  exports  and  paaning  tx  pott 
facto  laws  was  iucorroct;  with  others  the  lodging  of  the  execu- 
tive power  in  a  single  magistrute,*  With  some  the  term  of  oilifio 
of  the  senators  and  representatives  was  too  long;  ii-ith  others 
the  term  of  office  of  the  President  was  obnoxious  to  a  like  cen- 
enre,  as  well  as  hia  re-eligibility."  With  some  the  intermixture 
of  the  legislative,  executive,  and  judicial  functions  in  the  Sen- 
ate was  a  mischievous  departure  from  all  ideas  of  regular  gov- 
ernment; with  others  the  non-participation  of  the  House  of 
Bepre»>ntative«  in  the  same  functions  was  the  alarming  evil 
With  Bume  the  powers  of  the  President  were  alarming  and  dan- 
gerons  to  lilierty;  with  others  the  participation  of  the  Senate  In 
soma  of  those  |>owcr«.  With  some  the  powers  of  the  judiciary 
were  far  too  extensive;  with  others  the  power  to  make  treatJM 
even  with  the  consent  of  two-thirds  of  tho  Senate.  With  some 
the  iM>wer  to  keep  np  a  standing  army  was  a  sure  introduction 
to  despotism;  with  othera  the  power  over  tho  militia.*  With 
some  the  paramount  authority  of  the  Constitution,  treaties,  and 
laws  of  the  United  States  was  •  dangerous  feature ;  with  others 

>  %  Amer.  Uiueum.  &M,  5SS.  540  ;  Id.  4X7,  43S  :  M.  M,  S5S. 

*  1  Aner.  Umnm.  03 1  3  If  Ik.  Hbl.  8S>.  3S4 :  Tlio  pMlenlbt.  II<m.  71,  TIL 

•  Ser  1  Amcr.  Uoania,  431,  he.. ;  !<].  4S5  ;  Id.  4S4 ;  Id.  ^40,  h^„  S43,  Aw.;  Id. 
Cn  i  S  Amn.  HiUKun,  U ;  U.  U7i  td.  41»,  4S0,  4e. 


Sl« 


COKSTITUnOK  OP  THE  ITXITED  CTATn.  [b(M}K  HI. 


\  tll«  snutlt  number  conipt^siug  the  Senate  and  the  HouBe  of  R«p- 
TMentativ«B  wa«  an  alarming  aad  corrupting  evil' 

S  2(Ni.  In  the  glowing  language  uf  thoHe  times  the  pec^le  were 
told,  "thab  tho  new  government  will  not  be  a  ooofederacjr  of 
States,  ag  it  ought,  but  one  conaolidatcd  government,  founded 
upon  the  deRtnictinn  of  tliR  several  govemmenta  of  the  States. 
Hie  }iower9  of  Uongreea,  under  the  new  C<Mistitutinn,  are  com- 
plete and  unlimited  orer  the  puree  and  the  sword,  and  are  per- 
fectly indepenilent  of  and  supreme  orcr  tho  State  fruv(.Ttim<.rnt«, 
whoAe  interrontion  in  these  great  points  is  cutirolj-  desirojcd. 
By  virtue  of  their  power  of  taxation,  Ci>ui;r«u)  may  command 
tho  whole  or  any  part  of  tlie  propcrtiw  of  Oie  puuplc  They  may 
impose  wliat  imposts  upon  commerce,  tltvy  may  impose  what 
land  taxos,  and  taxes,  vxoisi-A,  and  duties  on  all.  ituitriiiuents, 
and  dutifs  on  every  fine  article  that  they  may  judgu  projM^r. " 
'^Congress  may  taonop<jlize  every  sourev  of  revenue,  and  tJiw 
indircM:tly  dismulish  the  Htate  (^vemiuents ;  for  without  fujid* 
th«y  could  not  exist. "  **  As  Cou^tcm  have  the  control  over  the 
time  of  tlio  appointment  of  the  President,  of  the  senators,  and 
of  the  representatives  of  the  United  Stall's,  they  roay  prolong 
their  existence  in  office  for  life  by  poBtponiI^[  the  time  of  their 
eleotioo  and  appoint nn'iit  from  |>i;riod  to  peri<Hl,  tinder  varJona 
preteoces."  "When  ihe  spirit  of  tlie  [leople  shall  W  gradually 
broken,  when  the  general  government  shall  be  firmly  establiithed, 
and  when  a  numorotis  standing  army  ahntl  render  oppoaitioo 
vain,  Uio  C'nngrcn  may  oompkite  the  system  of  despotism  in  re- 
nonneing  all  dependence  on  the  people,  by  continuing  themselves 
and  their  children  in  the  govemnicnt"' 

$  iii^X  A  full  examination  of  the  nature  and  extent  of  the  6b- 
jections  to  the  several  powers  given  to  the  general  govi^mment 
trill  more  properly  find  a  place  when  those  poweni  cumo  succes- 
•liely  under  review  in  oar  commentary  on  the  different  parts  at 
the  Constitutioo  itwU.  The  outline  hero  fumishitd  may  sem 
to  show  what  those  were  which  wurt  pnscolcd  against  tbem  M 
AD  ag^re^te  or  mans.  It  is  nut  a  little  remarkable  that  sMoe 
of  tiw  OMMt  formidable  applied  with  equal  foroe  to  the  Artiolcs 


ar  la  O*  fMcnb^  H*.  U,  «ltb  km 


1  Muj  of  Um  i»<wtl»i  mt 
M3,HI.H5.    SM*l«(faiA4ln««(Tlqlifa,SMLBiiMr.«M. 


a.mt 


CB.  n.] 


OBJBCnOXg  TO  THE  OONSnTDTlON. 


811 


of  Confederation,  with  this  differeiioe  onl^,  that  chongli  unUm- 
itml  in  their  terms,  they  wore  in  some  instaaces  checked  by  the 
want  uf  power  to  carry  tJicm  into  effect,  othorwioe  than  by  re- 
quixitlouH  un  the  Stutca  Thus  prcaenling,  as  has  been  justly 
observed,  the  extraordinary  phenomenon  of  declaring  cert^ 
powers  in  tJio  federal  government  ubaolutcly  neccaaary,  and  it 
the  same  time  rendering  them  nbitolutely  nugatory. ' 

§  800.  (9)  AnoUicr  oIosh  of  objections  urged  again»t  the  Coii« 
stitution  wa»  founded  upon  ita  deficieneies  and  umisaiona.  It 
cannot  be  denied  that  sonio  of  the  objections  on  this  head  were 
well  taken,  and  Umt  there  was  »  fitnofls  in  incor|K>rating  Bome 
proriaion  on  the  aubjeot  into  the  fundamental  articles  of  a  free 
government  There  were  othor«,  ajznin,  which  might  fairly 
enou)^  l>o  left  to  the  legislative  discn-tiun  and  to  the  natural 
influences  of  the  popular  roice  in  a  republican  form  of  gorero* 
ment.  There  were  others,  again,  so  doubtful,  bt^th  in  principle 
and  policy,  that  they  might  properly  bo  excltide<t  from  any  sys- 
tem aiming  at  pennanenoo  in  its  securities  as  well  as  it«  fgunda- 
tions. 

§  801.  Among  the  defects  which  were  enumerated,  none  at- 
tracted more  attention,  or  «'cro  ttrgod  with  more  leal,  than  the 
want  of  a  distinct  bill  of  rights  which  should  recognize  the  fun- 
damental principles  of  ft  free  republican  government,  and  the 
riglit  of  tlie  people  to  the  enjoyment  of  life,  liljerty,  property, 
and  the  puniuit  of  hajFpiness.  It  was  contended  that  it  was  to- 
dispensable  that  express  provision  should  be  made  for  the  trial 
by  jury  in  civil  cases,  and  in  criminal  cases  upon  a  prMontment 
by  a  grand  jury  only;  and  tliat  all  criminal  triaUabonld  bo  publio, 
and  the  jiarty  be  confronted  with  the  witnesfles  against  him;  that 
freedom  of  apircch  and  freedom  of  the  press  should  be  sectired ;  that 
there  should  bo  no  national  religion,  and  the  rights  of  conscieuco 
should  be  inviolable;  tliat  excessive  bail  should  not  be  required, 
nor  cnit'l  and  unusual  punishments  inflictt.'d ;  that  the  people 
should  have  a  right  to  bear  arms;  that  persons  conscientiously 
ncrapnlous  slioul'l  not  be  compelled  to  bear  arms;  that  every 
person  should  l)C  entitled  of  right  to  petition  for  the  redress  of 
grievances ;  that  search-warrants  should  not  l>o  granted  without 
oath,  nor  general  warrants  at  all;  that  soldiers  should  not  bo 
enlisted,  except  for  a  short,  limited  term,  and  not  be  quarU-red 
■  The  Fademliit,  No.  SS. 


218 


coNSTmmos  of  the  united  states.         [book  m. 


Id  time  of  peace  upon  private  boiu«s  without  the  consent  of  the 
ovn«r8;  that  mutinj'  bills  should  continiu>  in  force  for  two  years 
only ;  that  caimes  once  tried  by  a  jury  should  not  be  re^xamina- 
hie  upon  appeal,  otlierrise  than  according  to  the  course  of  the 
oommou  Ian' ;  and  that  the  powers  not  expressly  delegated  to  the 
general  guvcmmcut  should  bo  declared  to  be  rvserrud  to  the  States, 
lu  all  these  partlculani  the  Oou^titution  wa»  obviously  defec- 
tive; and  yet,  it  wu»  contended,  they  were  vital  to  the  public 
security. '  (a) 

§  302.  Besides  these,  there  were  other  defects  rcHcd  on,  such 
as  the  want  of  u  suiUblo  provision  for  a  rotation  in  office,  to 
prevent  persons  enjoying  it  for  life;  the  vant  of  an  executivu 
cotuK-'il  for  the  President;  the  iraiitof  a  provision  limiting  the 
durution  of  standing  armies;  the  n'unt  (tf  a  clause  securing  to  the 
people  the  enjoyment  of  the  common  law ;  *  the  want  of  secari^ 
forpro{K-r  elections  of  public  officers;  the  irant  of  a  prohibition 
of  inembi.-rs  of  Congress  holding  any  public  oRiocs,  and  of  judges 
holding  any  other  offices;  and  finally,  the  want  of  drawing  a 
elear  and  diivet  tine  between  the  |>ower3  to  be  exercised  by 
Congress  and  by  the  States.* 

S  iOi.  Many  oi  these  objections  found  their  way  into  Um 
UMndments,  which,  simnltaneously  with  the  ratification,  wetv 
•dopled  in  many  of  the  State  conventions.  With  the  Tiew  at 
carrying  into  effect  popular  will,  and  also  of  disarming  the  o|>> 
ponenta  of  the  Coostitutiun  at  all  reasonable  prounda  at  eoa* 
plaint,  Conmess,  at  its  very  first  seosicra,  took  into  cunsidetatiaa 
the  atnendments  so  propo«Ml ;  and  by  a  snooeasioa  of  aapplenaeft* 
tary  articles  providi^d.  .in  substance,  a  bill  of  rights,  and  secured 
by  coustitutiooal  decUtatians  m<Mt  of  the  other  impurtant  objeels 
tbtia  aoggHted  ThMo  aiticlea  (in  all,  twelve)  were  sduoitted 
by  Congress  to  the  States  for  their  ratificatioD,  and  ten  td  tbtB 
were  finally  ratihed  by  the  teqoisite  number  o(  States,  and  IfaoB 


4St  to  4M;  14.  *A  fc-:  ti.  SM.  «K.  IM^  H*^  k.  na,  Ac. 

•>i  M.  u;;  M.  ua^  <]ai  «ft,i  ite  Fiihwin.  Sm.  at 


<  1 
■  lit. 

»t±Mf^1iMiwm.tU.ia»:  14.  SU.  nr;  U.  S*^  SB7: 1 
U.  »».  aOk  «<^i  S  Pick.  BM.  313,  ST,  ai^  «t  IB^  S4. 


«riU«aM^LSlS4. 


a.m.i 


v«bb  m.  ft  n  SO:  I* 


CR.  n.] 


OBJornoNS  to  the  cokstitution. 


219 


^became  incorporated  into  ttie  C(U)stitatioiL*((t)  It  is  a  curious 
ctt  however,  that,  althuu^ii  tlio  necessity  of  tIie«o  amendments 
bad  been  urged  by  thu  oncmios  of  tho  Coostitutiua  and  denied  by 
tta  frit-ndii,  tliey  4^ncuuIlte^ed  scarcely  any  ottior  opposition  in 
tlie  f^lHtv  legislntiinM  Uiaii  what  was  given  by  the  vert-  purty 
whicli  had  mt8«d  tlie  objections.*  The  fricod»  of  the  Constitu- 
tion generally  supported  thorn  opon  the  ground  of  a  largo  public 
policy,  to  quiet  jealousies  and  to  disarm  rescntjnents. 

$  804.  it  is  pet^aps  due  to  the  latter  to  state  that  they  be- 
lieved tliat  Bonio  of  the  objections  to  the  Con:4titution  existed 
only  in  iniagi nation,  and  that  others  derived  their  sole  support 
from  an  erroneous  construction  of  thai  instrument-'  In  respect 
to  a  bill  of  rig:hta,  it  wiui  slated  that  several  of  tJie  Stat4  oonsti- 
tutiona  contained  none  in  form,  and  yet  vere  not  on  that  accomnt 
thought  objectionable.     That  it  was  not  true  that  the  Constitu- 

■  tion  of  the  L'nitcd  States  did  not,  in  the  tnie  sense  of  the  terms, 
Ccmtain  a  bill  of  rights.  It  was  emphatically  found  in  those 
clauses  which  respected  political  rights,  tbo  guaranty  of  repub- 
lican forms  of  government,  the  trial  of  crimes  by  jury,  the  defi- 

,  nitiott  of  treason,  the  prohibition  against  bills  of  attainder  and  ex 

ypottftmto  laws  and  titles  of  nobility,  the  trial  by  impeachment, 
and  the  privilege  of  the  writ  of  habeas  corpu*.  That  a  general 
hill  of  rights  would  be  improper  in  a  Constitution  of  limited 
powers  like  that  of  the  United  States,  and  might  even  bo  danger- 
ous, as  by  Containing  exceptions  from  powers  not  grouted  it 
tuiglit  give  rise  to  implications  of  constructive  power.  That  in 
a  govemmcut  like  ours,  founded  by  the  pi-ople  and  managed  by 
the  people,  and  especially  in  one  of  limited  authority,  there  was 
DO  necc«sity  of  any  bill  of  rights;  for  all  jxiwers  not  granted 
were  reserved,  and  even  those  granted  might  at  will  be  resumed 
or  altered  by  the  people.  That  a  bill  of  rights  might  be  lit  in  a 
monarchy,  where  there  were  strugglea  iictweon  the  crown  and 
the  people  alw>ut  prerogatives  and  privileges.  But  here  the  gov- 
ernment is  the  government  of  the  people;  all  its  olhcersara  their 


>  3  ntk.  But.  393,  »l. 

■  i  lUnb.  LiTo  of  Vfih.  Wi.  3M, 


•  B  tunk  ur«  rf  WMh.  SO),  tie. 


(a)  ThoK*  uMMdatmEa  aim  prapMtd  lif«  of  UwHaen,   II.  SS,  <««■;. :  Ulb  <f 

and  k1t«mwi1  b;  Mr.  Hadtwn,  Ihiaagh  FU»r  Amm,  I.  it;  Vn  Bokb,  Political 

l«h0M  tdiirt*  ia  the  miia  tlinr  puMg*  Fwtk*.  I»l.  i  Mf. ;  Huailuo,  HtaM; 

Ittnnj^CoagNMwuMcitml.   SaaBifc^  ot  tha BapaUic,  IV.  at. 


290 


cossTrrcmoK  of  tob  dkitkd  btites.        [book  hi. 


ofGccrB,  and  they  oah  ozercise  no  rights  or  ]>ower«  but  soch  a« 
the  people  commit  to  tlicin.  In  such  &  cue  the  silence  of  the 
OonttJtution  un<uv«  nutliing.  The  trial  bv  jurv,  the  freedom  of 
the  press,  And  the  liberty  of  conscience  are  not  taken  away,  be- 
caiiHG  they  are  not  secured.  Thoy  remain  with  the  people  among 
the  mosa  of  im^ranted  powera,  or  lind  an  appropriate  place  in 
the  lawfl  and  institutions  of  each  particular  Htato. ' 

§  S05.  XotK-ithstanding  the  force  of  these  Bu^gt-stiona,  candor 
will  compel  its  to  admit  that,  a»  certain  fundumi-ntal  rights 
were  secured  by  the  Constitutiun,  there  KL'vmPd  to  bo  an  equal 
propriety  in  Mcuring  in  like  manner  others  of  equal  valuo  and 
importance.  The  trial  by  jury  iu  criminal  cnses  waa  M-curod; 
but  Uiifl  cluuso  admitted  of  more  clear  definition  and  of  auxiliary 
provisious.  The  trial  by  jury  in  civil  casca  at  common  law  mm 
aa  dear  to  the  people,  and  afTordcd  at  least  an  equal  protection 
to  iJCrsons  nnd  property.  The  sanie  remark  may  l>e  made  of  sev- 
eral other  provisions  included  in  the  amciiilmenia.  Hut  these 
will  more  properly  fall  under  consideration  in  our  commentary 
upon  that  portion  of  the  Constitution.  The  promptitude,  seal, 
and  liberality  with  which  tlio  friends  of  the  Constitution  sup- 
ported these  amendments  evince  the  good  faith  and  aincerity  oC 
their  opinions,  ant)  increase  our  reverence  for  their  labors,  as 
well  as  onr  sense  of  their  wisdom  and  patriotism,  (a) 

>  The  Fedenlirt.  No.  U;  Ur.  it^ft  Addixs;  S  Atort.  Unanm,  Ui,  UO;  S  Anrt. 
■  Hdmuk,  Its,  iSS. 

(a)  The  OMMUtoika  «•*  MctftdluKl 
pnt  in  Gwce  in  ntkipatiMi  «f,  ntd  in  re- 
Uraet  apon,  th*  adqitiaa  of  Umm  UMiid- 
B>Mt%  u4  hf  Htmo  Ik  iMtfnMM  vm 
Mni]>leir<L  "  I  d-ell."  m>U  Mr.  Cheats 
'  OB  Ihil  tiaa  fnm  ITdO  to  1TS>,  Iiumm 
tlui  wu  onr  tgt  «f  dvil  giMtati.  Tlira 
tm  m  gm  to  be  MM.  U  IfcM  tia*  oar 
w—  bom.    TbM  wbkh  «MU  U- 


fore  made  lU  Indepmicnt.     Ooi 
1ibt«ty,  ow  Is*,  onr  aider,  ma  ttaUn,  «ar 

th*  Bcttou,  Mr  (Mgr  ia  Iba  pval  hiflnji 
WB  owe  to  UiM.  Injeprmkaw  wm  tbe 
nrk  aT  liic  Ugltr  pamimi.  Tk  Cmati- 
tvtloa  ■«■  Ikt  alMr  pndua  t^  triadm.' 
Lmmmw  JiflWMii.  Bd^  od  Buitttea, 
UB8. 


OB.  m.] 


KATtnU  or  TQC  CON'SItTtmOH. 


221. 


CHAPTER  in. 


KAmBB  OP  TBB  CONSITItmON,  —  WBETHER   A   COMPACT. 


§  306.  HAnxo  thuB  skctelied  out  a  f^cml  histoiT'  oE  the  ori- 
gin aod  adoption  of  tiie  Constitution  of  the  Unitvd  .States,  and  a 
Aumiuarv  of  the  principal  olijecttons  and  difGt^iilticB  which  it  liad 
to  cneonntpr,  wo  appronch  the  point  at  which  it  may  he  pn4>er 
to  enter  upon  th«  consideration  of  the  actiiaJ  iitructure,  oi^puiiia* 
tion,  and  |»»-era  which  l)olon^  to  it.  Our  main  olijcct  will  hence- 
forth Ite  to  unfuld  in  detail  all  it»  principal  prnviHiorin,  with  aucb 
oommcatorics  as  may  explain  their  imgwrt  and  effccti  and  with 
euch  illastrations,  historical  and  otliorwise,  aa  will  enable  the 
reader  fully  to  undcnttand  the  objections  which  huvo  been  nrt^d 
against  cflch  of  tiium  respectively,  the  amcndmcntD  which  have 
boon  prn)><»i-<l  to  them,  and  the  orgiuaenta  which  hare  sustaiaed 
them  in  Oit-ir  prcftcnt  forin. 

§  307.  Before  iu'mg  tliis,  howcrer,  it  seems  ncccasary  in  the 
first  placo  to  bestow  some  attention  upon  several  points  which 
have  attracted  a  good  dual  of  discussion,  and  which  uru  prclimi- 
nary  in  their  ovra  nuiurc;  and  in  tlic  next  place  to  consider  what 
arc  the  true  rules  of  interpretation  helooinug  to  tho  lustrumcut 

§  808.  In  the  tirst  place,  what  is  the  true  nature  and  imgwrt 
of  the  instnimeut?  Is  it  a  tr^atA',  a  convention,  a  league,  a  con* 
tract,  or  a  comjtact  ?  Who  are  tho  pArties  to  it  I  By  whom  was 
it  made  ?  fty  whom  was  it  ratified  ?  What  are  its  obligations  t 
By  whom  and  in  vhat  mnnncr  oiay  it  be  diMolred  ?  Who  are  to 
decide  apon  the  suppoecd  infractions  and  violations  of  it  t  These 
are  questions  often-  asked,  and  often  discussed,  not  merely  for 
the  purpuRC  of  tlieoretical  8{>cculution,  but  as  mutters  of  practical 
importance,  and  of  earnest  and  even  of  vehement  debate.  The 
uunrem  given  to  them  by  statesmen  und  jtiriats  ure  often  contra- 
dictory and  irreconcilable  with  each  other;  and  tho  consequences 
dednced  from  tlio  riews  taken  of  some  of  them  go  very  deep  into 
titc  foundations  of  t]ie  fiiovemment  itself,  und  expose  It^  K  not 
U)  utter  deatruction,  at  least  to  evils  which  tlire«t«n  Us  exlatcnott 
and  disturb  the  ju«t  operation  of  its  powers. 


222 


COXSTtTCrrOK  OP  THG   DXtTED  STATES.  [BOOK  tH. 


$  809.  It  will  he  our  object  to  present  in  a  condensed  form 
some  of  the  principal  exposilioRA  which  havo  been  infiistcd  on  at 
different  limes  an  to  the  nature  and  obligationR  of  the  Conatitti' 
tion,  and  to  offer  some  of  the  principal  objections  vhich  have 
been  BUgKeated  against  those  expociitiona.  To  attempt  a  minute 
enumeration  would  indeed  be  an  impracticable  task;  and  eonsid- 
ering  the  delicate  nature  of  others,  which  are  still  the  subject  of 
boated  controverst-,  where  the  ashes  are  scarcel}*  ret  cold  which 
covte  the  concealed  fires  of  former  political  excitemi^nts.  it  la 
Buflicienlly  difficult  to  detach  some  of  the  more  Important  from 
the  masa  of  accitiental  matter  In  which  they  are  involved. 

§  310.  It  bus  been  asserted  by  a  learned  commcnbitor,'  that 
the  Constitution  of  the  United  States  is  an  orijfinal,  writteo, 
federal,  and  social  compact,  freely,  voluntarily,  iiud  solemnly 
entered  into  by  the  several  States,  and  ratiliwl  by  the  peoplu 
thcn-of,  ri'S|R'ctiroly;  whereby  the  several  States  and  tlie  [leople 
tliereof  rvsjiecttvely  have  bound  thenuelvefl  t^  each  other  and  lO 
the  federal  ffovemment  of  the  United  State*,  and  by  which  the 
fedcmt  government  is  bound  to  the  several  States  and  to  every 
cititen  of  the  United  SIuIcm.  Hio  author  procc«dB  to  expound 
every  part  of  this  definition  at  large.  It  is,  saj-s  be,  a  compact, 
by  which  it  is  disliugnlshed  from  a  charter  or  griiiit,  which  is 
either  the  act  of  a  superior  to  an  inferior,  or  is  foiuided  upon 
some  oonsideration  moving  from  one  of  the  parties  to  the  other,  ' 
and  operates  as  an  exchange  or  sale.'  But  here  the  contracting 
partii>9,  whether  considered  as  States  in  their  ivolitica]  ca|)acity 
an<l  character,  or  as  individuals,  are  all  equal ;  nor  is  there  any- 
thing granted  front  one  to  another,  but  each  stipulates  to  part 
with  and  receive  the  same  thing  precisely  without  any  distinc- 
tion or  differenco^+ietween  any  of  the  parties. 

§  Sll.   It  is  a  federal  compact*  (a)    Several  eoreret^  and 

>  1  TuchtrH  Blade  Cnma.  App.  aoU  D.  p.  U6,  <t  «f . 

*  1  Tuokcr'*  BUck.  Cowm.  App.  mU  P.  |k  141.  * 

*  Hi.  JcfftfsM  HHTU  ilitt  Iho  CooBUtntiM  «f  tb*  rniled  SMm  I*  ■  MKqwd  bp- 
l«*eii  the  atstn.     ■■TWremufliiBtoaacwipMt.'Mj*^  i>a  paptr^n%Md  UW 

(n)  Ut.  Calhniui  hu  tnki(>d  npon  te  Uia  Q«B«nl  Guvwiiwmt."  Vwfcfc  YI. 
the  Tirw  \im  Ukn  b^  Ur  JHhraod  In  Ml  Sn  alio  th*  nrirw  of  tht*  ■«(%  by 
t»«  .Uk.r^i,  (HtiMv:  lli«  "DiMMlne  oa.  Jodp  A*  P.  T"-)-"-  (I'ri.f^v,,,,.  Vfc. 
Uir  I  3  (Dil  Gonninntcf  tbe     1M4)>     If.  ho*'  rv- 

Cbiu-1  .-...'^.'   Work*.   I.  Ut;  and  the    (fwtWwwUlw  n^  i-r   ■,....,,.>,."-«  Uw 
**  AUrm  •»  the  Rfkliaiu  of  Iha  8t*tM .  of  tmj  pv^fU,  It  iddM  bov  be  UoUd 


CH.  in.] 


KATDBB  OP  THE  CON-STmrnOX. 


228. 


independent  States  auy  unite  thenaelvc«  together  hy  &  perpetaal 
coofedorntioQ  without  each  ceasing  to  be  a  perfect  State.     They 

I  bf  the  bptlatarc  of  Viigiim  u  >  •olcran  pvolert,  "  whkti  U  tailed  Um  Cob- 
■tittitiiw  of  tlw  Ditlted  St>t«  of  Amoriu,  by  vbich  the;  «grtod  to  luiil*  in  •  liii^ 
gavwmaeut,  w  to  Ui«lr  rrUtlniu  v{th  facb,  uid  vilh  tortl^i  natloiui,  uiil  m  to  oMUin 
othtt  *rtMM  putfeulari;  ipecilitd."  4  JtR«raMi'«  C»rrM|>.  tIS.  It  would,  t  tini^c^ 
b*  nty  iliSooU  to  point  o«t  whon  uid  in  vfait  nuuia  any  wich  coiii{«ot  •■■  nadt^ 
TliD  CODitttution  wu  ncjibct  niido  aor  ratiSed  ti;  lb*  BlatM  «  »oTen4^ti«  at  politlal 
cotanunihin.  It  vt»  (nuucd  by  a  oaiti-«stMi,  propoasd  to  the  propto  of  iIm  StatM 
for  tiuit  ulapUoo  bj  CongrtM ;  toid  vm  adojittd  by  Slit«  MWVtstloM,  —  Um  In- 
tiMdkU  Rfnnotilivwor  Uib  pMi[4«. 


at  pbictd  beyond  ftnthw  oontro- 
y,  tbat  lli«  OMutitnliou  «f  tho  Untied 
Bum  U  ui  iBiirammt  cf  gwrcnunrot, . 
■gntd  vpoB  and  txUUUtud  in  tha  io««tsl 
£tatc*  \ij  tlis  p«ople  thermit,  tbroo^  ivp* 
naenutina  empuireml  tur  tlic  purpo«(i, 
t^vntire  ujion  the  jmfilr  iiidiTiilually 
and  «alloetively,  and,  Bttliin  (be  ijibne  of 
ita  pomtt*.  Qfiea  th*  gartnmiutt  «S  tb« 
Slate  aba.  And  tliat  th«  Union  whinh 
ia  {wriictcd  by  ntnuiii  of  it  i>  indiBolnble 
tkrtnigb  any  Mnpi  conI«ntplatod  by,  or 
■dMiMJbl*  unditr,  tt«  (iroTiiion*  or  «n  ^a 
ptadpliM  OS  whioh  it  to  basMl,  aad  oaa 
onlj  ha  ovcrthnma  by  phyiiaal  fbro*  ef- 
bttiiic  a  (rTolntioa,  Soch  haa  beta  tbc 
'  T<»«  of  tha  Jodlclal  ifepartmonl  from  Um 
Brvt.  and  t^  praolioe  M  Ibe  l(gi>latiT« 
•ad  oKx-DtiTn  diipanin«nU  ha*  oon«- 
■fOMded  tbait^o;  lEr  Jtfftma  faimicIC  a) 
Mr.  Calhociii  BKRiml^lty  concadaa  (Cal- 
hoon't  Wofli,  1.  tif).  harla«  hilnl  aa 
PmbUnt  to  oBer  pnctioal  icottanoc  la 
tlili  ouDHlnlalioa  of  An  CMUtitDtkm, 
And  BMlly  tin  poapk  of  tk«  OMiiitfy, 
*bi«  aooae  of  tlw  State*  ««dearoT«d  to 
tiMl  th*  ConktJlutlnn  a*  a  comtMCt  from 
which  ilKy  migbi  witbdi^w  wli«n  tb«y 
dteined  ita  fvoriBona  riolatad,  bare  re* 
•irttd  tbb  doctrino  with  lb*  uttnoat  mi- 
|vttdilnn  of  Milltarx  foirai^  and  at  an 
iOMDriiat  aacriAM  of  Ufa  aad  troaMtv  hart 
orcrthren  ita  adlmwita.  In  tb«  courla^ 
tlMRtoro.  in  tha  Oakiiwt,  in  th«  ULi  of 
Imialition,  atui  tn  tha  aibllnmral  of 
arnn.  the  satlonid  vl«w  ha«  fawlatily 
inrukd.    It  niay  be  added,  alw,  that 


tfaa  but  'gnat  *tni|Kle  baa  had  Ui«  «0«rt 
wbidi  able  mind*  bad  nilid[i«t«d  *•  tba 
minll  of  lb*  war  |)m  l.tf"  nf  OouTanmir 
Jlorrii,  III.  VSa ;  Calbuun'a  Woika,  ]. 
Sfll),  —to  atntigtben  oonadenUy  and  in 
aome  direclloiui  to  cottend  tb*  national 
BDllMd^.  8oinrlblii|i  of  thb  haa  Mma 
from  constilalional  fhangra  intioduMil 
for  tbi*  exprnaporpoat:  MniFthing  fron 
tlia  great  Incrtaao  in  folcral  offloo,  pal- 
iMiegt^  and  e3E|)«nclitur**;  but  morn  lliaa 
all  from  tbe  pnUie  mind  broominK  familiar' 
Itcd  wUb  tho  anploymeiit  bjr  the  Mttal 
goremroant  of  mmandou*  dbwrtltonaiy 
]»wen  dariug  tho  axialane*  «f  hoMllitim, 
■sd  «f  nwonl  and  aomewhal  arbtlrary 
DMaanna  alWrmid*  iu  mpfiRaiitig  di>- 
onbn  In  tli«  tfrrttofy  lately  in  nbdlion, 
and  ia  recooMtmi'ting  the  ebattcred  fahrio* 
of  Stale  govFrnmrul-  Tb»  eoaitltntloa  of 
any  nation  i>  pradially  what  it  baa  b*- 
romo  by  the  pnctial  tonstnution  of 
(boat  In  autborlly,  aeiinieaced  ia  by  the 
pve^ila;  and  it  ijaublhil  polata  bare  been 
oonred  by  tbat  mntiraMian  for  parpoau 
apfannlly  baneHcial,  and  under  circun- 
Btanoeaaliioh  bielfaie  tha  peopb  tuappiwral 
Of  indJAnnatv  then  t*  ray  gnat  probs* 
bility  Ibal  tha  ground  tha*  oconpM  will 
be  jxraianently  potaoaatd,  and  initaad  of 
bring  *ft«rwanU  ahandonod  volantarily, 
may  sot  even  be  oenttattd  by  tboae  wb« 
mi|ht  hBT«  dona  eo  wltb  rigor  and  rifoM 
nador  oOwr  dronaubuwes.  How  hr  tbia 
ahonld  ba'ao  wa  do  aol  diiooBii  tbat  It  1* 
aft  in  fad  ia  nn^DeelionaUa.    C 


224 


CONSTITOTIOK  Or  THB  DITITBD  ffTATES,  [BOOK  HI. 


vill  together  form  a  federal  republia  The  deliberations  iQ 
common  will  offer  no  riolenoe  to  each  member,  though  they 
may  i«  wrtain  rcsiiects  put  some  constraint  on  the  exerciae  of  it 
in  virtue  of  roluuturr  coKagemcnts.  The  extent,  modilicationa, 
and  objects  of  tltc  fodcral  authority  aru  more  mattoni  of  discre- 
tion.' So  iotig  aft  the  scjutnte  organization  of  the  m«mb«ra  re- 
mains, and,  from  the  nature  of  the  compact,  must  continue  to 
exist,  both  for  local  and  domestic  and  for  federal  purposes,  the  . 
Union  is  in  fact,  as  well  as  in  tlieory,  an  association  of  States, , 
or  a  confederacy. 

§  ^12.  It  is  also,  to  a  certain  extent,  a  social  compact  In 
the  act  of  association,  in  virtue  of  which  a  mnttitudo  of  men  form 
to^tlier  a  atJkte  or  nation,  each  individual  is  supposed  to  have 
entered  into  engagements  with  all  to  procure  the  common  vel- 
fare;  and  all  are  supposed  to  have  entered  info  cngagemontB  with 
each  other  to  facilitate  the  means  of  supplying  the  necessities  of 
each  individual,  and  to  protect  and  defend  him.'  And  tliis  is 
irhat  is  ordinarily  meant  by  the  original  contract  of  society. 
But  a  contract  of  this  nature  actuiiUy  existfd  in  a  risible  form 
between  the  citizens  of  each  State  in  their  several  constitutions. 
It  might,  therefore,  be  deemed  somewhat  extraordinary,  that  in 
the  i-stablishment  of  a  federal  republic  it  should  have  been 
thought  ueceiwary  to  extend  its  operation  to  the  persons  of  indi- 
viduals, as  well  as  to  tiie  Slates  competing  the  confodcnugr, 

§  81S.  It  may  be  proper  to  illustrate  the  distinction  between 
.  federal  comp«ct«  and  obli^tioiis  and  such  as  are  social,  by  ono 
or  two  examples.*  A  federal  compact,  alliance,  or  treaty  is  an 
act  of  the  state  or  body  politic,  and  not  of  on  individual.  On 
the  eontrar}',  a  social  compact  is  understood  to  mean  the  act  of 
individuals  about  to  create  ai>d  establish  a  state  or  ttody  politic 
am(Mig  tliemselvcB.  If  one  nation  binds  itself  by  treaty  to  pay  a 
certain  tribute  to  another,  or  if  all  the  membere  of  the  same  con- 
federacy oblige  thprnimlves  to  famish  their  ouotas  of  a  common 
expense  when  reqaired,  —  in  either  of  these  cases  the  state  or 
body  politic  only,  and  not  the  individual,  is  answeralile  for  this 
tribute  or  qunto.  This  is,  therefore,  a  federal  obligation.  But 
where  by  any  cmnpact,  cxpriiM  or  implied,  a  number  of  pertong 
are  bound  to  contribute  tiieir  proportions  of  tho  common  ex* 

■  I  Tnokcr'i  Bkck.  Oowni.  App.  nota  D,  p.  111. 

'  1  Tndur't  BUdc  Cooimi.  App.  note  O,  f^  141.  *  U.  {^  115. 


pensen,  or  i'- 
and  where  i 
society  it 
person  oi  . 


CB.  m.]  flH^P*  ^K*  coxsTiTunoN.  225 

.<ii  B.fr  ",)l  Intra  m«cle  by  the  common  conaent, 
iiuioe  with  th«B«  engagcmeats  Ihe 
1  t>  i^nntribution  or  to  puninh  the 

;-....^ucut,  I..  -  "  be  understood  to  be  more 

in  the  nattirc>  al  a  social  Ui  U  obligation.' 

§  314-  It  ia  an  un^inul  conj|i'  i  \Vi'i  tover  political  relation 
existed  liotwuen  tlie  American  v  '.■,■•  <  <ini  ^ct-dcnt  to  tho  Revo- 
iutioi),  ag  constituent  parts  of  the  i'<  ti?<l<  Kupire,  ur  as  depen- 
dencii.-8  upon  it,  that  relation  wa.-^  ruinplctcly  dissoh-cd  and 
umiihilated  from  that  period.  From  Uie  moment  of  the  Itevolu- 
tiuii  thor  liecame  Hcrerally  independent  and  sovereign  States, 
■jMesewing  all  the  rights,  jurisdicti«yi8,  and  authority  that  otlier 
'sovereign  states,  however  constituted,  or  by  whatever  title  d«- 
uoniinated,  possess;  and  bonnd  by  no  ties  but  of  their  on'n  crea- 
tion, except  such  as  all  other  civilized  nations  are  equally  bound 
by,  and  which  tt^cther  constitute  the  customary  law  of  nations.' 


>  ]  Tntbr'*  BUeV.  Cdtnm.  App.  nets  D,  p.  tiS. 

*  1  Tack.  Black.  Coutin.  App.  nota  D,  p.  ISO.  TW*  *l«n  km  rtry  dlOtrent  ftam 
tboe  whkk  He  Dua  hM^  with  to  nach  funw  uid  ptr^ieuity,  ntged  iu  lib  Appendix 
t«  hh  Abridamont  «f  tbc  Ltw,  }  3,  p.  10.  Ac. 

"  In  ordar  eomcDy  to  Montatn  tkU  ninV,  thb  UnlctnK  together,  and  ikia  nbordi- 
JjtMwn.  vc  uuct  fia  back  m  fur  m  J«nunry,  1774,  wbtB  Uie  thirtMn  SlstM  axaUd 
tftMMUy  in  the  condition  of  tKirt>-(ir  BritM  akmiet,  jrtt,  iefiiela,  1A<  fop^*  of 


[tiiFm  Fitmicd  origin*],  wTmign  pow 

rDtot*)  CoDgnai;  lad  (•pcdallj  in  J  . 

[povnn  ll»t  irill  ba  d«M>ribdi  o'^r 
•W*  ttMt,  on  ttmixdioaary  priin'i 
aO* cf  Ail  fttftU,  fim  CTMtoliff 
tlio  pMple  Tottd  In  tt  nrjr  rrlx 
•ad  daflMd  by  lb*  Anlcloi  (i  ' 

iCMwUtulioii  of  ilu  Unitfrl  > 

cd  to  do  it  U  -.-i 
^fr^oni,  laotfrifia  cb^-i. 

lMlll«l«>I  •IiiHbi  tW  ' 

OD'I  two  iliinU  of  t^i 

ttlaUiAtd  by  tlir  i' 

h«<re  bran.  t>y  t)jr 

(a  uilKinlliKliori  1 

■Bpwma   law  ;  *t 
;Um  ftnti  n(  %  I 

'to  tha  ponrtr"'  l  -. 

[flatdjr  Br 
LMalllha  1^-'-'.  "> 
LaUMtion.' 

Trfc,  L— 16 


ir  institution,  in  ITTt,  of  iho  Conii* 

'1  VHiiiift  in  ii  tbc  great  nationa) 

iron  renuDcd.    Hie  mall  will 

tC'-TMnant  waa,  by  thr«M(n<fN 

a  iauilhtod;  kud,  bjr  tb«  aaou  ai.-t% 

,  i..^li  hsrs  tTOr  RBiuned  in  It,  niolifitd 

Md  cnlarscd  and  amnsMl  anew  by  the 

-It  tbe  StaU  gDrenincati  anJ  Stalo^  a« 

.770,  ercklad  by  tlw  gnwnl  goronunofil, 

.  oa  nrdvtionBiy  prioelplM,  and  In  tbtir 

ilia  Sum  goTcnmaata,  m  mtK,  km  been 

mBKnc  aivj  in  lubordinaticai  to  it, 

)i(i  l.'iiital  Suie*  wi*  erdniwrf  tmd 

rrity.    Tha  SbiU  goranunanta 

i>'r,  and  apraaUy  or  ImpliMU^ 

I         .  Hbirli  i>  fipwaily  rtcopnid  bj  aU  to  be 

'.'<1>.  ii.  ia  theiMtanof  Aingi,  miitrior  ta 

fowtt  at  a  Sut^  a  ]iart,  ia  tnliHoir 

L  -.  ;L;.^.  :: —  ,.u;li  of  Iha  tweiity-lBiir  State* b  e«m- 

-lytrifn  at  Hiuna  er  FTance.  of  coona  aa  oortrvlgn 

lit  MTenignty  i>  abore  Judicial  oqgnuaorMv  mtrit  apeekl 


226 


cossrtTtmox  op  tub  ckitbd  ctatks.        [eoor  ni. 


§  S15.  It  ia  a  written  compact.  Coiuidorcd  as  a  federal  com- 
pact or  alliDiice  bctwecu  the  Htates,  thsrc  is  notliinf;  dw  or  sin- 
gular in  this  circumstAQoo,  n»  all  nationnl  compacts  since  the 
inrcution  of  letters  have  probably  been  reduced  to  that  form. 
But  considered  in  the  li^t  of  an  original  social  compact,  the 
Anii>rican  Revolution  secniK  to  have  given  birth  to  this  new 
political  phcnomrnon.  In  eror;  State  a  nritten  Constitution  was 
framed  and  adopted  hy  the  people  both  in  their  indvidual  and 
Borereign  capacity  and  character'  (a) 

%  816.  It  is  a  compact  frcoly,  voluntarily,  and  solemnly  en- 
tered into  by  the  several  States,  and  ratified  by  the  people  thereof 
respectively,  — freely,  there  being  neither  external  nor  internal 
force  or  violence  to  influence  or  promote  the  mejisurc,  the  Fnitcd 
Htatcs  being  at  peace  with  all  the  world  and  in  perfect  tranquil- 
lity in  each  State ;  voluntarily,  because  the  measure  had  its  com- 
mencement in  sgwntancous  acts  of  the  State  legislatures,  prompted 
by  a  souse  of  the  ncci-ssity  of  some  change  in  the  existing  con- 
federation ;  and  soli-muly,  ns  having  been  discussed  not  only  In 
the  general  convention  which  proposed  and  framed  it,  but  after- 
wards in  tlie  lej^islalures  of  the  several  States,  and  finally  in 
the  conventions  of  all  the  States,  by  whom  ic  waa  adopted  and 
ratified.y 

§  <117.Ut  i«  a  compact  by  which  the  several  States  and  the 
people  thereof  respectively  have  bound  themselves  to  each  other 
and  to  the  federal  government.  The  Constitution  had  its  com- 
mencement with  the  body  politic  of  the  several  States;  and.  its 
final  adoption  and  ratification  was  by  the  sereral  legiBlotorea  re- 
ferred to  and  completed  by  conventions  especially  called  and 
appointed  for  tliat  purpose  in  each  State.  The  acceptance  of  the 
Constitution  was  not  only  an  act  of  the  hody  politic  of  taeh  State, 
but  of  the  people  thereof  respectively  in  their  sovereign  charmctcr 

■  1  thekw't  Bkdt.  OsoiMi.  kpf.  not*  D,  p.  1S&  Tlin*  It  4n  iiuMnacy  hm  ; 
OMOMtkat  4U  hm  Bgmi  a  ooiutitiitiaii  natf  ISIS,  aaJ  mUIkI  quIII  lint  r«Hfd 
uod«r  W  coknkl  ctottr.    Rbod*  lateail  ftWMd  *nit  adoplcJ  a  euiuUtuUua  ia  IS43; 

*  1  Toektr'a  Bkek.  Canun.  1pp.  note  D,  pp.  IDS,  lU. 


(a)  But  mill  mtll  a^pttm  llw  ml- 
«nk)  eWt(«  fitnat  be  eoDiideml  u  bar- 
injl  Ixm  aocepttil  fat  aai  u  conttitiUing 
a  State  nMUiUttlM.  TUi  wm  tbo  ri*v 
taken  b^  the  Sapeiiot  Cuurt  of  Bfaoil* 


IiUsdIn  178S,>tiMlnUiacan(if'n«vMt 
*.  WeMliw,  a  )t^lattv«  Ml  wa*  doelMvA 
tmoonctitullaiml  tecaiue  in  oonljel  irfUi 
the  tojti  chmttBt.  8m  ako  Lather  tk 
B«nlMi,  7  How.  I. 


CB.  lU.] 


KATCHe  OP  THB  OOKSTITCTIOS. 


227 


and  capacity.     Tlic  body  politic  was  cumpotont  to  bind  itiMilf, 
M)  f ttr  SM  the  confttittition  of  the  Htatc  pcmiittod.'    But  not  UaT'i 
iiifl  jiowtir  to  bind  the  people  in  ciuius  iK-yund  thvir  const i tut  Jonal) 
authority,  the  n«84;ut  of  the  |>coplc  wiu  iiidii»i)cu»nbly  necessary . 
to  the  validity  of  the  compact,  by  whidi  the  rights  of  the  people  - 
might  be  diminished,  nr  aubmitt«d  to  a  new  juried ictioD,  or  in 
any  manner  affected.     From  hence,  not  only  the  body  politic  of  - 
the  several  States,  but  all  citizenii  thereof,  may  be  considered  as 
parties  to  the  compnct,  and  to  hare  bound  thonj«elTea  rccipro-  ■ 
cally  to  each  other  fur  the  due  obson-ance  of  it,  and  also  to  hare 
bound  thcmBclTea  to  the  federal  firorernme^  whose  author!^ 
has  been  thereby  created  and  established. *1  ' 

§  318.  Laatly,  it  is  a  compact  by  which'^e  federal  govom- 
mvnt  is  bound  to  the  several  Statca  and  to  every  eitizen  of  the 
United  States.  Although  the  federal  government  can  in  no 
possible  view  be  considered  as  a  party  to  a  compact  made  ante- 
rior to  its  existence,  and  by  which  it  was  in  fact  created,  yet, 
as  the  creatnre  of  that  compact,  it  must  be  botmd  by  it  to  its 
creators,  the  several  States  in  the  Union  and  the  citizens  tlicreof. 
(laving  no  existence  Imt  under  the  Constitution,  nor  any  rights 
but  such  OS  that  instmrnent  confers,  and  those  very  rights  being 
in  fnct  duties,  it  can  possess  no  legitimate  power  but  such  «s  is 
absolutely  necessary  for  the  (terfomiance  of  a  duty  prescril>ed  and 
enjoined  by  the  Constitution."  Its  duties  then  become  the  exact 
measure  of  its  powers;  and  whenever  it  exerts  a  power  for  any 
otlier  purpose  than  the  performance  of  a  duty  preacritied  by  the 
Conslitiition,  it  tranagrcascs  its  proper  limits  and  violates  the 
public  tru»t  Its  duties  being  moreover  imposed  for  the  ^'^ncral 
benefit  and  security  of  the  several  States  in  their  politictil  ehar- 
actcr,  'and  of  the  people  both  in  their  so^'creign  and  individual . 
capacity,  if  these  objects  be  not  obtained,  the  government  ducs- 
not  Bnii«~vr  the  cud  of  its  creation.  It  is,  therefore,  bound  to 
the  several  States  respectively,  and  to  every  citjien  thereof,  for  . 
the  due  execution  of  those  duties;  and  the  observance  of  this 
obligation  is  enforced  nndcr  the  solemn  sanction  of  an  oath  from 
those  who  administer  the  government. 

§  819.    f^uch  is  a  summary  of  the  reasoning  of  the  learned  au- 
thor, by  which  he  has  undertaken  to  vindicate  his  views  of  the 


>  1  Tucktr'i  Bittdc.  Cnnm.  Afip.  noU  D,  p.  14B. 
*  ]  Tuck*r'i  Black.  Camn.  naU  D,  f.  170. 


*  lUd. 


228 


CONSTITCTIOS  OP  THE  UNITED  STATXS.  [BOOK  HI. 


nature  of  the  ConHtitutioo.  (a)  Tlut  rearming  has  bwn  quoted 
At  largo,  and  for.  the  moiit  part  in  his  uwu  wuixlts  nut  trn'roly  aa 
his  own,  but  as  roprt-ounting,  in  a  gvncrul  ttt-uiiu,  the  opinions  of 
a  large  l>oi]j'  of  stutMrnen  and  jurisltt  in  different  parto  of  the 
Union,  avowed  and  acted  upon  in  former  times,  and  reccntl)'  re- 
vived under  ci rcumstaucoi  which  have  given  them  increased  im- 
portance if  not  u  porilouK  iufluenoe.'  (4) 

>  lUnr  tnoM  of  tluM  qilnkOR  mOX  be  tomd  in  tha  fmUle  JebrtM  1b  llift  StaW 
UgiiUtiu**,  wid  in  OongnM  it  dilTannt  pvr(i»la.  lu  tli«  moJiiilnnt  of  Mr-  Taylor,  ia 
tbe  Vir^inU  l(!|{u)»tim  in  I7>3,  il  wu  mulnd  "tbat  thlt  luMinbly  doUi  upUdUx 
■nil  pCTUnpUdly  dcelan^  that  It  vism  t]w  pow«n  ot  the  FtiUnI  gornniBimt  «  i«- 
•nbliig  from  ths  cafn|HKt  la  wMek  iA<  £M(i«  art  partu*.'    So*  Daite'i  Appmdix, 

(n|  When,  in  1S<I,  Um  ptople  of  that  Duin  mu  oojiieil  rruiu  tlitt  ot  the  (Jnilad 

■Mtian  of  tb*  Mtmtiy  in  trhidi  the  doo-  StatM^  but  its  rrunen  wen  fmitfaokr  to 
Iriiirn  uf  Mr.  Tiirltir  W  uh*n  ino*t  totlf^'fttXa  that  ibc  pcrwrn  veMod  in  th«  Con- 

Hiii^uil'ti'il  to  withilniw  tnia  lb«  Unien  gn**  mra  dtltyaud,  mi  jpioaicd  to  tlikt 

uiil  valublisli   >  goTerikuunit   of  CctEhI-  bodj'. 

cntD  SUtes,    tbof  nndcavarril    bjs.  thrir  llow  iar  dw  purpoce  of  thaar  ramtioM 

conatitiition   to  ptvdude,  fatirvcr  neh  n  Itimi  tha  Conxtilalioa  of  the  Union  «u 

conttniellan   gf  lb*  initnniaiil   m    bad  aocoai|4itb«d  luaj  api>«ar  from  tb«  aUta- 


nieiii,  doiibtltM  Miuevbat  cnggtratol, 
ol  a  promini'iil  M*or,  who  dc«ktsa  that 
"  in  Icaa  tban  a  tWraMontb  after  tbi* 
aaraa  boaatad  »tatw-ri^ta  ConMttullan 
»at  ]iul  in  eppralioii,  fta  •nrj  fminct* 
Botorioiialjv  anil  in  apfte  of  all  nonon* 
•tnsea,  •ncModed  tn  MowlidatinK  all 
fortrnnianial  |ioanr  In  iIm  f»ntnl  atpnt^ 
at  Ric)men>l,  anil,  U]>an  the  Oala  pica  «( 
■KiUtoy  nttaiUf,  alianH-leMljr  trod  oniUr 
4^toM(.  promWi  M«  fctt^a/  trd/an,  and     loot  dl  ibo  MMrrsdr^UoT  tba  Sutca 


)iii'val1i>>I  tvginliiig  lliu  CuDriiliitiim  of 
thu  VnilxA  States  The  pRamblea  of  the 
tiro  inttmmeiiti  |ilaiwd  ude  \tj  iMa  nil) 
tbow  vury  clliUnol;  tb*  dUTanaiM  iB  tba 
«nda  aoneht.    ■ 

PnamUt  to  Of  OMAMUm  qT  (A« 
nnitrf^Sato.  •■  WV^lift  ptofia  o(  tha 
Oiitat  Statd^  in  oidar  to  form  a  mpnpiT' 
fid  Omlniy  rslaUkh  jntfko,  iumk  do> 
uaalte  InuiiiilIUUr.  prvHit/ar  Ou 


■tenia  tba  Meaainga  of  Uberty  to  owaelvaa 
and  our  peMarity,  do  ocdata  and  aataUiali 
tUt  Conatitutlon  for  tba  raited  Sutca  tt 
Anorioa." 

AaamMi  lo  A*  CtauMMtM  qTOe  Cn- 
fiitrau  SMf*.  ••  W«,  tha  paofile  «f  tba 
QniMtnU*  Slates,  and  eatk  SlaU  aeliaf 
tt  a*  tBttrrigm  and  LMfrpndnt  dianMUr, 
in  onlcr  lo  forai  a  pmnaneDt  FtdenU  jpir- 
eronimt,  cataUldi  jaitiok  and  aaoara  iba 
bltaiinip  of  liberty  to  onraaima  and  o«r 
{Mlatity,  Infotliiii  tba  tariTr  and  gnliUaca 
of  AUnigbtr  G<^,  do  ontaia  and  aaUbUib 
Ibia  CMadtwtioa  fbc  tba  Confnlnala 
StatM  of  Atnacha.^ 

Tha  OcaManta  CbnUimUoa  h  tha 


and  tba  paofA*,  and  origanicad  «n  im- 
•pmdUa  milltaiy  daapoUiM  In  tba  tvy 
beaMi  cf  tba  Ancient  Dnwinlon,  aa  bmih 
■ad  grinding  in  it*  cbaiactoraa  ^a  erar 
bofttoforearlirtadlnanjafi:  (,(lh><roHd." 
Tha  War  of  Iba  ReUllion,  )>y  U.  &  Foote, 
p.  19.  The  MuaaunB  of  which  Hr.  Foota 
coniplaintd  wfic  diwppnnj  of  by.  tha 
Tica-Ptatlilral  of  iba  Conffdefacj,  and 
*«»  the  lubjaet  if  pMlaata  la  aom*  «f  tha 
SWai^  npaelallT  In  Oawsia;  bol  in  a 
tifc^nd-daatb  alraggle  Mgorcnunvnt  i* 
Bkaly  («  inqnin  vny  eanftdly  into  papa 
tbnitaliona  opon  lie  powaia.     C. 

(»)  8m  alao  Ufa  of  WaUtat,  by  i^tsr- 
til,  II.  Bb.  Ifl  and  la^ 


CH.  m.] 


NATUHB  OF  THB  COSSTITUIIOS. 


229 


$  320.  It  ia  wbfilly  beBido  our  present  purpose  to  engage  in  a 
critical  commeatary  upon  the  difFert^nt  parts  of  this  exposition. 
It  will  he  sulHcient,  for  all  the  practical  objecta  we  hare  in  Tier, 
to  8UK$^t  tho  diflicultira  of  maintaining  ila  leading  positions, 
toex]Miiiid  the  objcctiona  wlich  huvo  bwn  urged  against  them, 
and  to  bring  into  notic-o  those  upiuions,  which  rest  on  a  very 
different  basis  of  principles. 

§  321.  Tliv  obvious  dfluctions  which  ma}'  be,  and  indeed  have 
been,  drawn  frooi  considering  the  Constitution  us  a  compact  be- 
tween the  ^t«t«s,  are,  that  it  operates  as  a  mere  trejity  or  conven- 
tion ti«tween  them,  and  has  an  obli^tori-  force  upon  each  8tat« 
DO  longer  than  suits  its  pleasure,  or  its  consent  continncs;  that 
each  State  has  a  right  to  judge  for  itself  in  relation  to-the 
nature,  extent,  and  ol)ligations  of  the  instniment,  witlioiit  being 
at  all  bound  by  the  interpretation  of  the  ffideral  government,  or 
by  that  of  any  other  State ;  and  that  each  retains  the  power  to 


f.  IT.    Tha  oc^giad  nwlaikm  had  Ui«  nrd  "alone"  afUc  "Stttia,"  «1ikfa  mu 

r  itrtck  Mt  Ufa)  tha  dtolJan  of  tha  origiiial  movar,  h  luvliig  botn  ancKed  in  tb*  de- 
bu*  thai  Uia  pavl*  w<n  panlaa  alaa,  aad  tiy  mim  of  tliB  wftkan  that  llw  p«of4a 

'  irtn  «Kcl«itT«lj  pwtiML 

Tb*  Kentucky  mnlallMa  cf  nV7  (irlikh  «ai«  dnilcd  bj  Mr>  JcSmmu)  dcdan 
**  tluil  to  tkte  map«ct  (tbt  radanl  CcnutituUon]  cub  Suu  acceded  u  ■  State,  and  ia 
M  li>t«fn*I  futy."  North  Aiu«rica>  Rrrlme,  Oplubtr,  1830^  pp.  SOI.  M.  la  Uia 
riaoIatJona  of  the  unato  of  South  CaioUiut.  in  Kov<?ml«r,  1S17.  it  wu  dcclaredi 
"tiMt  tlie  CoMtitatioa  of  the  I'mCnl  SUt«a  ia  a  compact  between  the  people  of  the 
diftranl  Stataa  vith  laeh  other,  la  upanito  and  indcjiriidiaiC  aovereigntiu."     Id  No- 

.  TunlMr,  im,  tba  Kaatodcj  ItittoUun  fMti  a  naolotlon,  Jiwlaiinit  llml  llie  Fuieral 
Stataa  had  a  tight  Ut  Jwdge  cf  any  InftacliDa  of  the  Conslltulion,  and  that  »  imlUI'ica. 

i  tioii  by  thoae  aoTMeigntiea  of  ait  nnaathofued  Mia  done  under  color  of  tlut  intitninient 
h  tho  ll|hlflU  riantdy.  Nocth  Anierwaa  Beviev,  ld>  &03.  Mr.  Mndiiuii,  iu  tlie  Vir- 
ginia Beport  of  IMO^  ntMrtU  tti«  riglit  of  the  Stataa,  a*  parliu,  to  decide  npoM  the 
mnoouatittitkiaalily  of  aay  maaaiue.  Ibfort,  p|i.  S,  7,  S.  9.  The  Virirlnia  ItgiablaT*, 
fai  ISS).  pawaJ  a  nwUHoa,  dadaiing  lliat  "the  OmatiUiliuD  of  tbr  UnUad  Sutw 
t>4iiig  a  MMBtl**  coaipact  fa*tirt«m  aaviiiajga  Stalea.  in  oonatruing  vhidi  no  oonuBMi 
atUte*  b  ItBOSB,  n^h  Slate  bat  the  rigbl  10  <ott*tnw  the  compaet  for  HactL"  3  Aaa. 
An.  Bt«.i  Uxal  lliitury,  131.  Ur.  Vtoe-FrtalJent  Calhoon'a  letter  to  Gov.  Itam- 
lUoti  of  Aa^nat  SS,  1832,  «ontaiua  a  vfty  tlaboial*  opotitioa  «f  thb  amoag  otW 
doeUtnca. 

Mr.  Dan«,  in  hia  Appandji  (f  S,  p-  lt)>  >*y>,  that  far  forty  yean  one  great  pat^ 
hu  tvnirnl  tin  Conatltullon  a*  a  Cnl>ratlTe  cooipMit  aaong  the  States  and  ih*  othtf 
i;mt  |>arty,  not  aa  aoth  a  camrai-t,  tail.  Id  IIm  main,  ualioaal  and  popular.  Tb* 
gran  debate  in  the  BoMte  of  the  I/'aitol  Slaua,  «■  Mr.  Faot'a  tnnlutian.  tii  tbe 
winttr  ef  tSSO,  deaovH  to  bo  OMd  for  ita  aMe  expoMtion  of  tb*  doctrin«  aalnlainad 
cm  aatk  iililc  tli.  Dane  utha*  tnqMMit  icfncseea  to  it  In  Ua  Appandix.  4  ElUot'a 
Debate*,  StS  to  S30. 


S80 


coKSHTtmoK  of  tob  cniixd  stateb.        [mob  in. 


witlidraw  from  th«  confederacy  ftud  to  dissoI^'e  the  connection, 
when  Bucli  ahull  Ihi  Um  choice;  and  muy  suitpeud  the  upcruiiuns 
of  the  fcileral  govcrmncnt,  awl  nullify  it«  acta  withio  it«  own  ter- 
ritorial limibi,  whoncrur,  in  its  own  opinion,  the  csig«iicy  of  th« 
cane  may  nxjuire.'  These  conclusioDB  may  notnlwayii  Ije  avowed; 
but  they  flow  nattirally  from  the  doctrines  which  wo  have  under 
conBidcratioD.'(<i)  They  go  to  the  extent  of  reducing  the  gov- 
ernment to  a  mere  confederacy  during  pleasure ;  and  of  thas  pre- 
senting the  extraordinary  spectacle  of  a  nation  existing  only  at 
the  will  of  each  of  its  constituent  parts. 

>  VitiHaii,  tn  Uw  naalntion*  of  b«r  lagtoktuM  on  Ihi  tatUt,  in  gAmitj,  1S39,  io- 
eUml,  "  tint  Ibtn  ia  do  commoii  irliiUr  lo  eonMnis  tlw  OvmUmiIou  ;  Ui»g  a  /td- 
4ralim  crnipief  Idteceit  BOTRcigii  Statoh  oaoli  Suie  list  a  rigbt  lo  OoaXiU  iba  con-  ' 
pMt  Cor  itadf."     B  Dmu'i  Abridg.  eh.  IST,  ut.  M,  S  >*•  ^  M»'     8m  alu  No*Ui 
Amutcan  Roiiow,  Oetatm,  1830,  pp.  tSS  to  S38.    Tha  laolatMa*  ot  Ktatucky  of 
1793  ooDtaln  •  llko  docUntkn,  Ihif'to  thb  oavi|»ct  [Uw  CoortiuAioa]  Mch  8ut« 
MonUil  u  K  Slate,  >u<l  U  an  ioWgnU  {Mriyi  tlxt  Ilia  genmnMnt  cnattd  h;  M»  com- 
pact  wu  not  roaiU  Ute  exolarirc  oi  final  jiidgt  ot  the  pouvit  dakipMl  to  itatU',  tc ; 
but  that,  u  In  all  othartaMaof  oomjiaet  amoag  partiM  haviagMocouunou  jnil^vadi 
peftjr  ItM  an  oiiial  rlKht  to  jiailfgt  lor  (ticir,  m  «mM  ^  infraetien*  om^  tin  meit  ami  , 
nitiuuTt$tfratnM."    North  AoMrkan  R«rt«w,  OcMUr,  IStt^  f.  HI.    Tha  KMAttckr'i 
raeJoUont  of  17M  fp»  fuilW.  and  aant  "  that  tl»  acrontl  9HIM  »fco  bmcd  that ' 
lastmnent  [tha  OoartUotioal  being  aomeign  «4>d  imletiondtnt,  han  tha  iiBq»eaUDn»  ' 
Ma  right  to  jadg*  of  ita  inbacHos;  aad  tkat  a  ttuIUflcalion  b;  thcaa  aovimgntica  of 
all  aliauthoiticd  acta  doii*  nadar  color  of  that  iHtrumsnt  U  the  rtghtftil  nrntij," 
Moilh  Anwrican   RuvUw,  ]i.  S03i  1  ElllM't  DtkmtBa,  815,  SS3.     In  Mi.  Miduon'a 
B«port  in  tli«  Virginia  l«gialatuiv,  in  Jannarj,  1800,  it  ia  alao  aOnngd  that  At  Slataa 
ara  pardea  to  dk*  Ocautftntian;  bat  hf  SKoCm  ba  hatv  nraM  (aa  tha  ootilaxt  aspiaina) 
tha  prnpla  of  tha  Statat.    Tbe  tcpoK  in^Ha  tha  lb*  Sutn  ar«  in  the  hut  NM(t  tbt 
nltiniatoJui^Mof  lUtnftactlOMof  tbtOMMtitatioK.    pp.  C  T,  S,  ». 

*  I  Oo  not  in«>n  to  antrt  thai  aU  thoM  who  haU  tiuae  doctriBW  hare  idoploil  tha 
conclniion*  drawn  (ram  tbcB.  Tbm  ata  Mnintnt  aiotptlona ;  and  Mnong  thorn  tha 
Ivamail  comnMntator  on  Blackatamn**  CoouncMlarira  *r«ma  pioparir  anaibcnd.  St* 
1  Tnokar'*  Black.  App.  17<>,  171.  |  S.  iba  tha  dabalat  tn  tha  Saaala  on  Mr.  Fool's  . 
Raaotnlion  in  1830,  sod  )lr.  Daiia'a  ippandiz,  and  hia  Abttdgmnil  a»d  Dlgivt,  Vol. 
IX.  «1>.  lit,  art.  M.  f S  IS  to  33,  p.  588, 1  Mf.  ;  North  AnMriom  BeriBv  fat  Oolobar. 
Ittt^ontbeDalMtaontbaPttbUeLMdikpp.  481  to  488,  488  to  a!8 ;  1  EWot*a  Do. 
tBt«,31Ste»D:  MadiaiM'a  VlfKinia  lUpcfft,  Jaa.  1800,  pp.  8,  7.  S.  » ;  4  JaCmoa'a 
OanmfomSaieu,  Hi ;  Tica-Pnddwt  Calhonn'i  leltar  to  Gov.  nantOlon,  Angot  V, 


(a)  8m  Hr.  Hxlisatt'a  Mplaaatian  of 
tha  Viigiwa  Beaolutioua,  Wridngiof  Had- 
laon,  I?.  >S  ;  KotUi  AmcricaM  Beriav, 
(Mot-ar,  IS3« ;  fUMblTa  JtfoMon,  II. 
451.  9«alMi  kU  Kadhon'l<4aboral* pa- 
per on  NnlUGtation,  la  hi)  Wrllinga,  IV. 


m>  dmpar*  aitatheiightof  tlieStatiaa 
to  jvdgc  M'to  iftbaetloai  of  tb*  CaiutlCa- 
llon,  Report  of  Iha  Rartfonl  Voiinotioa 
of  1811.  1>  I>w%ht'a  Kitforr  Oumnt, 
^  Sn ;  Kil^a  BtglMar,  VoL  VII.  p.  808. 


CH.  Ul.j 


NATCBE  or  THB  CXJXSnTDTION. 


■-r 

SSI 


§  322.  If  this  bo  U)o  truo  iDtcrpn-tation  of  the  instrmneDt,  it 
has  wltglly  fuiled  to  cxprcjui  tbu  intentions  of  its  framers,  and 
brintn  buok,  or  at  least  may  briog  Iwck,  upon  us  all  the  otIIs  of 
tJiu  old  confederation,  from  which  we  were  DupiKutud  to  Imvo  bad 
a  safe  deliverance.  For  the  power  to  operate  upon  inilividuaU, 
instead  of  q)>oi-nting  merely  on  States,  ia  of  little  consoguvncc, 
tbougb  yielded  by  tlie  Con-ititution,  if  that  power  is  to  depend 
for  its  exercise  upon  the  continual  consent  of  all  the  memlwra 
upon  every  enierjrency.  We  have  already  seen  that  the  framers 
of  the  instrument  contemplated  no  such  depcndenoc.  Kven  onder 
the  confederation  it  wa«  deemed  a  gross  heresy  to  maintain  that 
a  party  to  a  compact  has  a  right  to  revoke  tliat  compact;  and  the 
possibililr  of  a  questi<Mi  of  thia  nature  was  deemed  to  prove  the 
nocesaity  of  laying  the  foundations  of  our  national  government 
deeper  than  in  tlic  more  aonction  of  delegated  authority.'  ''A 
compact  between  independent  sovereigns,  founded  on  acts  of 
legislative  authority,  can  pretend  to  no  higher  validity  than  a 
le^ie  or  treaty  between  the  parties.  It  is  an  established  doctrine 
on  the  subject  of  treaties,  that  all  the  articles  are  mutually  con- 
ditionii  of  eoeh  other;  that  a  breach  of  any  one  article  la  a  breach 
of  the  whole  treaty;  and  that  a  breach  committed  by  either  of 
the  parties  absolves  the  others,  and  autboriices  them,  if  they 
please,  to  pronounw  the  cumpuc-t  violated  and  void."'  (a)  Con- 
sequences like  these,  which  place  the  dissolution  of  the  govern* 
ment  in  the  hands  of  a  single  State,  and  enable  it  at  will  to 

<  Tbn  P*dar*lbt,  T>o.  tt ;  IiL  Ko.  49  :  w*  kIm  Hr.  VtlUnatt't  opiiiioa  ia  tha  eon. 
rtatiiMW  4  EllIM'a  [Mbim,  74, 76  ;  «iul  ¥*(«'■  HuibU*. 

>  71w  Fidinlbl.  So.  iS.  Hr.  Hwluo*  U  the  Viigiiib  B«poR  ot  hamrf.  18<A 
•Merta  [pp.  8,  T)  tlutt  "  Uia  HUM  being  )aKUi  t4  the  wrtiftfawil  coiu]iKt,  ibiI  is 
thrir  •ovcraifp  Mpadty,  it  lolkiBi  or  ocwuit;  tlint  thnra  caa  b«  no  bibanal  •bow  tfcdr 
■aUiaht;  to  dedd^  Id  tka  Um  tmoit,  whctbvT  xiie  cotniNet  in»(le  bj  tbtla  ba  viokladt 
»Md  wiHMqmatly.  thai,  u  tlw  putki  to  it,  thay  miul  thauMlvM  dcciik  in  th*  kU  !«• 
hH  tmA  qnatiwM  u  Mtj  b*  «f  talBcUDi  maKnltuila  to  Mqvin  tihnlr  Istafpodtloa." 
Id.  pp.  8,  9. 


,  ('■)  In  Uu!  Itcport  of  tJb«  Baftford  Om- 
TemioD  oT  ISU,  U  wu  iledued  that  "  in 
CMM  of  ilellbfnu,  d»ag«Tow.  ud  \»if 
bit  infr*(«ku  of  Iha  CmuUtntkm  aflWt- 
lag  ibi  tovMeignt;  of  a  Slala  and  liUrthn 
of  the  peopla.  il  b  not  only  tlie  riglit  bot 
th«  daty  of  Mdi  •  Slate  to  interpoae  fta 
■atWit;  far  UibIt  ptDtaetlon,  la  th*  mair- 
an  bMt  ealcnbtad  to  Mton  that  omL 


Whan  <niwg«atha  oc«nr  wkjcib  an  (Mwt 
Uyond  tba  natk  «f  tha  j«dkU  trihnaala, 
ot  tiM  ]iniiag  to  adinit  of  tha  dalajr  inci* 
dcel  to  iMr  ronai,  Slat**  uUcA  JUm  Md 
coamum  umpirt  MnM  ba  their  ovn  judgv 
andMKTUtr  thnroBndMlaiaiui.''  Dvigbt, 
Hbt  HutTord  Oonvtadoa,  Wl ;  Kiln** 

it^utw,  voL  vn.  ^  SOS. 


COXBTtTtTtOM  or  TUB  DKrTED  RTATBS.  [SOOK  IljJ 


defeat  or  i»wp«n<l  tlie  o|>«ration  of  the  laws  of  tbe  Union,  arc  too 
Mriotu  Dot  to  require  an  to  Borutinize  «-ith  the  otjnost  care  and 
caution  tlio  pnticiplen  from  whicli  they  flow  and  by  which  they 
aro  alli>m|itcit  to  Ih;  juHtilit-cl. 

{  82S.  Thfl  word  "compact,"  like  many  other  important  words 
in  OTir  langiiHftt!,  ia  atuccptiblu  uf  different  shades  of  meauiiig 
and  may  ho  UHod  in  differont  scuHoa.  It  is  Bometimes  tued 
merely  to  exprt-sa  a  dcUbcnito  and  vuluntary  assent  to  any  act  or 
thioR.  ThiiH,  it  hnx  lM>en  said  by  Dr.  South,  that  'Mn  the  be- 
giiuiinj^  of  ajK-ci'h,  thei-o  was  an  implicit  compact  founded  upon 
common  oonsont>  tliat  such  words,  voices,  or  gcatun.>«  should  be 
Bi^s,  when-by  thoy  would  expcoss  their  thoughrs;"'  where,  it 
is  obvious,  tliat  nothing  more  is  meant  than  a  wutiinl  and  settled 
appointment  in  the  use  of  language.  It  is  also  used  to  exprcM 
any  agreement  or  contract  between  pnrties,  by  which  tlipy  arc 
botmd  and  incur  legal  obligations.*  Thus  we  say  thrft  one  person 
has  entered  into  n  compact  with  another,  meaning  tliat  the  oon- 
tmctiiij;  parties  have  entered  into  some  agreement  which  is  valid 
in  point  of  law,  and  includes  mutual  rights  and  obligations  be- 
tween them.  And  it  is  also  usod,  in  an  emphatic  sense,  to  do- 
note  those  agroeiuents  and  stipulations  which  are  entered  into 
between  nations,  Bueh  as  public  treaties,  conventions,  confedera- 
cies, and  other  solemn  acts  of  national  authority,'  When  we 
speak  of  a  compact  in  a  legal  sense,  we  naturally  includo  in  it 
lhii  notion  of  diiilinct  cunlracting  parties,  havini;  mutnal  rlKlits 
and  remedies  to  enforce  the  olpUgutions  arisinii  thervfrom.  Wo 
suppose  that  »aob  party  has  an  equal  and  independent  capacity 
to  enter  into  tho  contract,  and  has  an  ei|uiil  rijHit  to  judjm  of  its 
tenns,  to  enforce  its  obligations,  and  to  imiitit  u|Hjn  rcdrms  for 
ftny  violation  of  them.*    This,  in  a  general  sense,  is  true  under 


>  Clml  IB  JotiMM'i  DictiaaHT,  nrb.  Otmfttl.    Sea  BtiDccc.  Elm.  Jnl^  Satar. 

■  lN»«liirr  ilUiiiyil'ht*  UK  nil  a  oeninct  ani  •■  ifUMuiL    Aa 
m^u,  tt  llw  fwwal  «f  Mv  or  man  (Mnoas  ta  htm  looa  tagiflMHat.  «r  (a  i 
■MUfy  ■■  MugiwiBt  afawdr  Bade.    "  Dactw*  nl  ptonna  la  IdMi  i 
MW."    had.  Uk  1.  1 1.  d.  PMtk.    Aa^wiwMaUff  wUA  two  i^tjw  iwf— • 


Cb 


fliUy  ffiMiM  mhI  «>fl«t%  ot  Ma  of  tbMi  ringtr  pn«ii«  tad  m^^c*  t*  ik*  *Am,tB 
|iw  ■•••  (MtiraW  Mmg,  or  M  An  or  ahMafafrHa  ■  pMtJeaW  ad. »  »  wtiMt ; 
tyvUckbaMMMMeku  ^.iBMa  aa  |t*«  ■  {MRj  IW  ri(fct  UriIIt  teHwain* 
MiratfacMaM.    l>MUif,<Mic.lMtl.cLl.i1;«t.l,|l.    SmlWmk.* 

•  V.tMl.a&dLl&  {ISS:  I  Ktdt.Omm.ti. 

*  t  lb*.  Oamm,  ttt. 


CB.  nt.] 


NATOBB  OP  TBB  CONSTlTCnON. 


238 


our  syRtema  of  municipal  law,  though  practicallj  that  law  stups 
short  uf  maintaining  it  in  all  tlie  vuriety  of  forms  to  which 
modern  refinement  has  pushod  the  doctrine  of  implied  contracts. 

§  324.  A  compact  may,  titcn,  be  said  in  its  most  gvnernl  senso 
to  import  an  agreement, — according  to  Lord  Onke's  definition, 
aggrtgatio  mtntium,  aii  aggregation  or  consent  of  minds;  in  its 
strict4.'r  sense  ta  import  a  contract  between  parties,  which  creates 
obligatioiui  and  rights  cajiahle  of  being  enforced  and  contem- 
plated aa  Buch  by  the  parties  in  their  diatinct  and  inde|M;ndcnt 
cUuracters.  This  is  erpially  true  of  them,  whether  the  contract 
be  between  individuals  or  between  nations.  The  remedies  are, 
or  may  be,  different;  but  the  right  to  enforce,  as  accessory  to 
the  ublipttioti,  is  equally  retained  in  each  case.  It  forms  tbo 
very  stibotnitum  of  tht-  enpapcment. 

§  326.  The  doctrine  maintained  by  many  eminent  writera 
upon  public  law  in  modern  times  is,  that  civil  society  has  its 
foundation  in  a  voluntary  consent  or  submission^'  and,  there- 
fore, it  is  often  said  to  depend  opon  a  social  compact  of  the  peo- 
ple composing  the  nation.  And  this,  indeed,  does  nut.  In 
suhstanc^,  differ  from  tlie  definition  of  it  by  Cicoro,  Multitudv^ 
jwit  eonaenm  tt  utilUatU  eommxtnione  toeitOa ;  that  is  (as  Bur-  \ 
lamaqui  gi^-cs  it),  •  multitude  of  people  uuitcd  -together  by  a 
common  interest,  and  by  common  laws,  to  which  they  submit 
with  one  accord.^  (a) 

■  WoodMon'i  EattMOti  of  Jurbi-niittBra.  11,  SS ;  t  Wllaon'*  Uw  LccL  301  *90S  [ 
VituI,  8.  1.  ch.  1,  1 1.  3 ;  ?  RurlMN()ut,  part  1,  el>.  2,  S,  4 1  1  Rliuk.  Canim.  47,  U ; 
n«lMtc.  L.S,c)i.  1,  Sf  13  tolSi  (STunbuU.  lIcUin:(^^>-stia>o(  Unlvrrail  L««,  D. 
S.ol>.  1,  HBtolS:)  10.  ch.  II.HI«*U>I1S. 

■  Barlmwini.  (lut  l'.  ch.  t,  | » ;  n*liiixc.  EUm.  Juris  Katar.  L.  X  <^  *>  1 107- 
lb.  Lncfcii  u  sac  ot  Urn  tooit  amlixnl  aothon  wb»  h4r«  Irrated  on  tbb  ra1((Mt.   Ila 

(iMDdi  >I1  dtil  Kamiunrnt  Upon  MiixntL  "  Vb«,"  Myi  ht,  "  unj  nnmlwr  of  mm 
hmr*  to  eonwntad  to  mk*  •  CMnmieitf  or  ^vtmrnnmi,  tbcf  mn  ibtrebf  |nM«l()y 
iiiOM)>iiimtoil,  umI  tniko  dm  txxlf  politic,  witrtia  Uu  m^jorU^  iart  a  rigU  toad,  »iut 
tantude  Hit  tat."  Locke  o«  Coninunnit.  B.  1,  eh-  8, }  H.  And  b*  coniddan  thb 
oouMUt  to  be  booiul  bjr  tbe  will  of  lb*  nujnrilf,  u  tkr  iaHtftamMa  rHalt  of  Iwcutnlng 
a  CDMniDnl^ ;  "  tUr,"  Mjrt  ht^  ~  ihla  nHfliul  Mni|M«t,  wiMivbjr  li«^  witk  otbtn^  Ift- 
CorponiW*  tnto  uno  mviply,  oonld  ugnirj  nutkiiig,  auJ  b«  bo  ooiii|W!t  il  all"  tiOtk« 
OM  OoTamnient,  B.  3.  H  BA,^.  83.?9:  Id.)}  110,  ISO.  Dr.  I'aley  bu  muni  nans 
mj  tanUAt  objtctiaiw  agaitut  tUt  dostriiM,  both  u  natter  «f  tluoir  and  of  fad,  oitk 
wlikb,  battrtit,  k  la  Mftrpiwuy  fcm  M  Intoivwddl*.  TW  lUwujaiofi  of  thrm  w««ld 
mon  praprrij  bdaog  to  IwtuiM  upMi  natanl  imiI  |ulilkal  law.     Fabjr  on  Uonl  anil 

(4)  S«(  Jlainc,  Andtnt  I^w,  cb.  9 ;  LwtiuM  oa  the  SmU  C«m|iact,  at  PiwUmic*. 
br  Jobn  QdIbct  .\iluiia,  1842. 


oownrcTTtoN  of  the  dnitbd  states.        [book  m. 

§  326.  Mr.  Justice  Bluckstonc  has  very  justly  observed  tbftt 
the  tltcury  of  no  original  contract  upon  the  first  formation  of 
society  is  a  visionary  notioiL  "  Hut  tliout^li  society  had  not  its 
format  beginning  from  Aiiy  convention  of  individuals  actuated  by 
tlieir  wants  and  fears,  yet  it  is  the  sense  of  their  weakness  and 
imperfection  that  keeps  mankind  together,  that  demonstrates  the 
necessity  of  this  union,  and  that,  therefore,  is  the  solid  and 
natural  foundation  as  well  as  the  rement  of  civil  society.  And 
this  is  what  we  mean  by  the  original  contract  of  society ;  which, 
though  perhaps  in  no  instance  it  has  over  l)ccn  formally  ex- 
pressed at  the  lirst  inatitution  of  a  State,  yet,  in  nature  and  rea- 
son, must  always  be  understood  and  implied  in  the  very  act  of 

PoUtiul  Plii]oao)jli;,  B.  fi,  oil.  S.  Hr.  Bark*  haM,  in  one  od  hii  meal  ■plcndid  p(if«nii- 
ftnc!*,  tnado  Mmo  {nxrfauiid  tdloctlotu  mi  thU  aiit|)cct,  Ibo  eonoliikiaii  ol  which  MOMlo 
b«,  that  it  lociMy  Id  to  bs  dMnud  a  oonLnct,  U  b  cne  of  ftiTriini  obligufan,  mi  not 
lubl«  U>  l«  rilnolml  ■!  the  will  ot  thua*  who  hiVB  entered  iiiV)  it.  T1»  futmgt  !■  U 
follow*:  "Sociolyii  indwd  a  contmrl.  Subonlinnto  cantrKta  for  olgccU  «f  am 
oecuionil  liitan«l  amy  li«  dUwIvnl  al  jilvMnr*.  Rnt  tha  Staia  ou^it  uot  to  Iw  «od> 
■Uvivd  n  nutliiug  btm  Uiiui  •  piitu«nhip  tgnvrntul  iu  ■  tn>l«  of  p'I'p*'  attd  toth», 
nlio),  OT  lobacoo,  or  RMBe  other  inch  low  coucarn,  to  Im  Ulcn  uytor  a  liltit  toapinty 
luUraaC,  and  to  be  dbMlvcd  bj  tho  tuKj  of  Ihc  partjra.  ll  !■  to  be  lookod  oa  «itli 
Othar  (ararmM ;  bacauM  U  la  no*  a  jiarlnanlilp  In  ttiingi,  xubMrrlMil  oiily  to  tba  ipram 
•nhnal  exial«n«i  oT  •  tvuipomy  and  |irrl*b«bla  naiurt.  It  b  a  |«niMnliip  in  all 
MJNin,  a  partMnhip  in  all  art,  a  partncnhip  i«  avvry  vbtuo  *ii4  in  all  jMifrcticti.  M 
tiM  citda  of  (Dch  a  pinnenhip  euuivl  ba  obtaisfl  in  lauijr  gvnerationi^  it  bewti  a 
patlntnhip  not  onlj  between  tlioM  who  me  livbg,  bat  bntwertt  thoM  who  an  UTing, 
itiflMulia  aro  iimA,  aiii]  thaw  who  an  to  ba  bom.  Ra«li  contract  et  taA  partlcnlar  j 
Statu  ii)<ut  aclaiiM  la  thn  gnat  primaTsI  oantnetatatarnal  Mclaty,  Unking  tba  lovtr 
with  the  liigba  niluTpa,  ooncvotiug  Uie  viiililv  and  InTiaiUe  woiU  aooonling  lo  a  AmiI 
tonpact,  lanctiontd  by  the  iiiTioUhlo  oath  which  bald*  all  pbyikal  and  all  moral 
naluKs,  each  in  thdr  appoiatol  iiL>«.  Tliui  Uw  u  not  labjoct  to  tbo  will  uf  tboM 
who,  by  an  obU/^ttoti  alior«  thriD,  and  tnltnllaly  lUjiorlor,  an  bound  to  nibmll  tliair 
Will  to  that  law.  The  tniuikip«l  voqicnllnn*  of  that  unlrtml  kingdom  ar*  no*  nor- 
ally  at  liberty  at  thMt  plwuiv,  and  on  tliairlpconlallant  of  a  contingent  inijirovf^at, 
whoUf  to  tpjimtc  and  trac  ontndcr  tiM  baada  of  tktir  mbwdiiuita  coamiuily,  and  lo 
ditaolrcit  into  an  uiuocial,  QD<^iviI,  uacMis«ct«l<h«a«af  oleaMntary  priod[dM.  It  ii 
llie  fint  anj  tnprpnio  D«c«mitr  oulf,  — a  aiciaaty  that  lanot  ehvac^  bMtbooai^— a 
a*ot«ily  paiuMWit  to  delibmtion,  that  admita  no  diacuaaion.  and  d«Baad«  no  OTi. 
it*t^  wUcb  al«<n  can  Jartifr  a  reaart  to  tnarchy.  TU*  nvoeaii^  i*  no  nnpUm  to 
tii«  rale ;  beoanio  Uui  noeonty  itadf  ii  a  put,  too,  of  that  ineml  lod  {ilijnMl  db]io* 
ridoBofthinp  towhid  man  moat  btobtdUnt  bf  oonwnt  or  rone.  But  tfthatwhkli 
ia  only  mitnnijHlon  to  neciadty  ahould  b*  mad*  the  otjtwt  of  cjiolo*,  thii  U«  ti  twckfO, 
UAtaia  I*  dliob«y«),  and  tbf  nbtniom  an  o«lUw<d.  out  forth,  and  txiled  haul  thb 
wotU  ct  reaaen,  itt  ordw,  uul  pnte,  and  Titln«,  and  Tniitful  {xailenufv  Into  the 
antafonbt  world  of  madneea,  diKotd,  ric^  conhiaian,  aaJ  nuBTailtng  ■arrow."  lUllec* 
Uona  ca  the  B«v«lntian  in  Fiacce.  ■ 


CB.  III.] 


NATCEB  OP  THE  CONsnTDTION. 


2S5 


asaociKtilij;  t«f^hcr;  iiamuly,  thnt  the  wholo  sliuiild  protect  all 
its  parts,  and  that  ever}-  [Mirt  should  pay  obedicnm-  to  tho  n-ill  of 
the  u-liulc ;  or,  in  other  words,  that  th«  ooitiiuu&ity  should  gnard 
the  riglits  of  each  individual  nipmher;  and  thnt  in  return  [or  this 
protection  each  individual  nhould  8utimit  to  the  laws  of  the  com- 
munity. " '  {it)  It  is  in  thia  acnae  that  the  preamble  of  the  Cod< 
dtitution  of  MaaBaehuiictta  aasfirta  that  "  the  hody  politic  is  formed 
hy  a  voluntary  aasociation  of  individuals;  that  it  in  a  social  com- 
jnct^  by  which  the  whole  pcc^le  coveaanta  with  each  citizen,  and 
each  citizen  with  Ihu  whoU-  [Mjofdo,  that  all  shall  be  governed  by 
certain  laws  for  the  common  ).;uod ; "  and  that  in  the  ftamo  pre- 
amble tlic  people  ackuowledRC  with  Rratcfu!  hearts,  that  Provi- 
dcnee  tiud  afforded  them  an  opportunity  ''of  entering  into  an 
original,  explicit,  and  solemn  compact  with  each  other,  and  of 
forming  a  new  constitution  of  civil  irovemmeDt  for  thenuelre*  and 
thrir  piutterity."  It  is  in  this  sense,  too,  that  Mr.  Chief  Justice 
Jay  is  to  be  understood  when  lie  asserts*  that  "every  Stiite  eon- 
Btitution  )8  a  comtnct  made  by  and  between  the  citiicus  of  a  State 
to  govern  themselves  in  a  certain  manner;  and  the  Constitution 
erf  the  fnited  .State*  is,  likewi.'te,  a  compact  made  by  the  people 
of  the  United  8tatc«,  to  govern  theiiiselvi'S  as  to  general  objects 
in  a  certain  manner."  He  had  immediately  before  stated,  with 
reference  to  the  preamble  of  the  Conatitution,  "  Here  we  see  the 
people  acting  aa  sorereigna  of  the  whole  country,  and  in  the  lan- 
guage of  sovereignty,  establishing  a  cooatitution,  by  which  it  was 
their  Kill  that  the  State  govornnienta  ahould  he  bound,  and  to 
which  the  8tate  constitutions  ahould  be  made  to  conform."* 

>  t  Black.  Comni.  47.  Sm  abo  I  Hum*'*  Emkfn,  KtMj  I!.  Mr.  IlamA  eaaiAAen 
thai  the  nMieo  of  gorprnaatat  bdiig  uaitMMlIjr  fooniUil  ia  ariglnal  oeotnd,  to  vi»> 
ioaaij,  unkw  in  the  mw  at  ita  Iftiug  fbnttdal  a|aa  tha  couatal  of  IImw  who  Gnt 
MiatlaH  tafrthof  and  wty^t  Uwnwdvw  to  autbcdty.  He  bM  diociUMtl  Um  aatjcct 
at  Wf*  la  aa  >labana*  auay.    E«ay  11,  p.  491. 

*  ( l>toh«fan  r.  Sute  ofOsoigU,  S  Dall.  It.  Il»  ;  mo  >l*o  1  WIImu'i  Uir  I.wt.  305. 

*  in  th«  ontlnaiKn  of  Ounj^nw  «f  I7ST,  for  tha govrninwiil  of  Iha  Uniloty  of  tha 
IfiJtHi  Statai  nonhaMt  of  rirtc  Ohio^  in  whiob  ih*  wttlcnunt  of  tha  XeniVarf  aail  tha 
(ateblithmoit  cf  MVanl  Stalaa  thtnia  w*n  0MUon4ibt«d,  it  «••  deebuad  that  ocnaiB 
■rtklM  thoatn  wnaitntad '' thall  ha  oMuUttad  aa  orMete  i^^itmpM  bttwaui  the  oi%l- 
Dal  Statw  and  Iho  li«0|Jo  and  Sultv  la  tha  «ild  Itnitatf,  and  forarar  ramala  Wiall«r»- 
U(k  aalnn  hj  coounon  «a«M«it."  Hm  la  an  aspfM*  raumoKtian  of  pattica^  na*  «t  i 
Mhon  wtn  not  thin  i»  oxittaaci^  and  the  actirta*  of  «ani]»ct  altaclxd  aa  «ii«h  only, 
vhaa  tlu;  WON  bma|[h(  tnbo  life.    Awl  than.  toBToUalldaubt  mIo  thnr  oUigaloijr 

(a)  8««  MahM.  AndeDt  Iah,  «h.  9. 


S36 


COXSTlttmON  OP  THB  OXIIEO  STATES.  [BOOK  Ul. 


§  8S7.  But  although  in  n  general  sense,  und  thoorotically 
spL-akiiig,  the  formation  of  civil  societies  tuid  atuteti  ma.y  thus 
1m:  tuiid  to  l>c  founded  in  a  social  compsct  or  contract,  that  is,  in 
the  Bulemn,  express,  or  implied  consent  of  the  individuals  com- 
posiiig  thcin,  j'ct  the  doctrine  itself  requires  many  liinitntiun^ 
and  quaiificntions  when  applied  to  the  actual  condition  of  na- 
tions, even  of  those  which  are  most  free  in  their  organization.' 
Every  state,  however  organized,  embraces  many  persons  in  it 
who  have  never  aasented  to  its  form  of  goremment,  and  many 
■who  are  deemed  incu|)able  of  such  uasent,  and  yet  who  are  held 
Imund  by  its  fundamental  institutions  und  tans.  Infants,  minora, 
married  women,  persons  insane,  and  many  others,  are  deemed 
subjects  of  a  country,  and  bound  by  its  laws,  although  they  have 
norer  assented  thereto,  and  may  by  those  very  laws  Ir-  disabled 
from  such  un  act  Even  our  most  solemn  instruments  of  govom- 
ment.  framed  imd  adopted  as  the  constitutions  uf  our  .Stale  gov- 
cnuueuts,  arv  not  only  not  founded  upon  the  assent  of  all  the 
people  within  the  territorial  jurisdiction,  but  that  assent  is  ex- 
pressly excluded  by  the  very  mnnner  in  which  the  ratilicatiou  is 
required  to  be  made.  That  ratification  is  restricted  to  Ihusc  who 
are  qualified  voters;  and  who  are  or  shall  be  qualified  voters  is 
decided  by  the  majority  in  the  convention  or  other  body  which 
submits  tlie  constitution  to  the  people.  All  of  the  American 
constitutions  have  been  formed  in  this  mnnner.  The  assent  of 
minors,  of  women,  and  of  nnqualtlied  voters  has  never  been 
asked  or  allowed;  yet  these  embrace  a  majority  of  the  whole 
population  in  every  organixed  aociety,  and  are  governed  by  its 
esisting  inatitutiona.  Nay,  more;  a  majority  only  of  the  quali- 
fied voters  is  deemed  sufScient  to  change  the  fundamental  inati- 
tutions  of  the  State,  upon  the  general  principle  that  tho  majority 
has  at  all  times  a  right  to  govern  the  minority,  and  to  bind  the 
latter  to'obwliencc  to  the  will  of  the  former.  And  if  more  than 
a  plurality  is  in  any  case  required  to  amend  or  ehunge  the  actual 
constitution  of  the  society,  it  is  a  matter  of  ]>oliticai  choice  with 
the  majority  for  the  time  being,  and  not  of  right  on  the  part  of 
the  minority. 

§  3281.    It  is  a  matter  of  fact,  therefore,  in  the  history  of  our 

httB.  ihtjrtnto  be  otuOunU*  txcvpt  bj  taminim  eanmU.    Ona  fuif  c««ld  nut 
ebuifi  vt  nbaolTC  lUiU  tntm  lb*  oUi^lion  ta  «bt7  Ibvm. 
>  Sm  Borice**  AppMl  bon  Uie  Kv*  to  Uw  (Hit  Vhlg*. 


CH.  m.J 


ItATtTRB  OP  THE  CONSTTTDTtOK. 


287 


own  forms  of  government,  Ui«t  th«,v  have  been  formed  without 
the  consent,  express  or  implied,  of  the  whole  people;  and  that, 
although  firmly  ratablJshed,  thej*  owe  their  existciioe  and  author- 
ity to  the  Rimpie  will  of  the  majority  of  tlie  qualified  voters. 
There  is  not  probably  a  single  State  in  the  Union  whose  oonsti- 
tation  hag  not  been  adopted  against  the  opiiiiona  and  winhea  of  a 
larf^  minortty,  even  of  the  ijualilicd  voters;  and  it  is  notorious 
that  acme  of  tliom  have  been  adopted  by  a  small  majority  oi 
votoa.  How,  then,  can  we  assert  with  trutii,  tJiat  even  in  oor 
free  const itutiun  the  t^vommont  is  founded,  in  fact,  on  tlie  assent 
of  the  whole  people,  when  many  uf  tJicm  have  not  been  pennitted 
to  expresa  any  ofitnion,  and  many  have  expressed  a  decided  dis- 
sent ?  In  what  manner  arc  we  to  pru\-a  that  every  citizen  irf  the 
State  ha«  contracted  with  all  the  otlivr  citizens  that  such  con»ti- 
tutinn  sliall  be  a  binding  cumpAct  between  them,  with  niutunl 
obligationa  to  obaen'e  and  keep  it,  against  such  po«Itive  dissent? 
If  it  tie  aaid  that  by  entering  into  the  society  an  oaftent  is  necessa- 
rily implied  to  submit  to  tlie  majority,  how  is  it  proved  that  a 
majority  of  all  the  people  of  all  ag>*3  and  sexes  were  ever  aaked 
to  assent,  or  did  aasont,  to  such  a  propusition  f  And  aa  to  )>cr- 
sous  subsequently  bom,  and  subjected  by  birih  to  such  society^ 
whore  i»  the  record  of  such  assent  in  point  of  law  or  fact ! ' 

§  32i).  In  respect  to  ttie  American  Revolution  itself,  it  is 
notorious  tliat  it  was  brotiglit  about  against  tlie  wishes  and  resis- 
tance of  a  formidable  minority  of  the  people,  and  that  the  Dec- 
laration of  Independence  never  had  the  univental  a(!«ent  of  the 
inlial)itanta  of  the  country.  So  that  this  great  and  glorious 
change  in  the  organization  of  our  g«»vermncnt  owes  its  whole 
aathority  to  the  efforts  of  a  triumphant  majority.  And  the  dis- 
sent on  tlie  part  of  tbe  minority  was  deemed  in  many  cases  ft' 
crime,  carrying  along  with  it  the  penalty  of  confiscation,  forfeit- 
ure, and  personal  and  even  capital  punishment;  and  in  ita  mild- 
est form  was  deemcfl  an  unwarrantable  outrage  upon  the  public 
riglits,  and  a  total  dixregurd  uf  the  duties  of  patriotism. 

§  830.  The  truth  is,  tliut  the  majority  of  every  organized  soci- 
ety hare  always  claimed  and  exercised  the  right  to  govern  the 
whole  of  that  society,  in  the  manner  [>ointed  out  by  the  fnnda- 
mental  laws  which  from  time  to  time  have  existed  in  such  soct- 


<  Sot  1  Hub*'*  tu*yK  tamj  VL 


238 


COMtrnTCTION  OF  THE  DNirCD  STATES.  [BOOK  m. 


\ 


ety.^  Every  revolution,  at  least  when  not  produced  by  poei^ve 
force,  has  been  founiled  upon  the  authority  of  auch  majorify. 
And  thfl  riglit  rciiulta  from  the  very  necejisitit's  of  our  nature ;  (or 
utiirenial  comient  can  never  bo  practically  re*iuircd  or  obtained. 
The  minority  arc  iMund,  whether  they  have  asxented  or  not;  lor 
thu  plain  reason  that  opposite  wills  in  thu  same  society,  on  the 
8Hme  subjects,  camiot  preruil  at  the  Kume  time;  and,  w  society 
is  instituted  for  the  Rcncral^afcty  uud  huppiness,  in  a  conflict 
of  opinion  the  majority  mu&r'have  a'  right  to  aceomplish  that 
object  by  the  means  which  they  deem  adequate  for  the  end.  The 
majority  may,  indeed,  dccido  bow  far  they  will  respect  lh«  rights 
or  claims  of  the  minority;  and  how  far  they  will,  from  policy 
or  principle,  insist  upon  or  absolve  tlicra  from  olwdience.  Bat 
this  is  a  matter  on  which  they  decide  for  themselves,  according 
to  their  own  notions  of  justice  or  convenience,  fn  a  genera) 
sense  the  will  of  the  majority  of  the  people  is  absolute  and  sorer- 
eign,  limited  only  by  their  meana  and  power  to  mako  their  will 
effectual'  The  Declaration  of  Independence  (whieli,  it  is  his- 
torically known,  was  not  the  act  of  the  wholo  American  poopte) 
puts  the  doctrine  on  its  true  grounds.  Men  are  endowed,  It  de- 
clares, with  certain  inalienable  rights,  and  among  these  oro  life, 
liberty,  and  the  pursuit  of  happincea.  To  secure  these  rights 
govcmiucuts  are  instituted  among  men,  deriving  their  just  pow- 
ers from  the  fintaeiU  of  tlie  governed:  Whene^'er  any  form  of 
gorcmmeiit  bdcomes  dcstructi\'e  of  these  ends,  it  is  the  right  of 
the  people  (plainly  intending  the  majority  of  the  people)  to  alter 
or  to  abolish  it,  and  to  institute  a  new  gorcmmcnt,  laying  its 
foundation  on  such  principles,  and  orininizing  its  jwwcrs  in  such 
forms,  us  to  them  shj^l  seem  most  likely  lu  elTect  llioir  aafo^ 
and  hap])ine8s,^^ — ^^ 

§  SAl.  But  whatever  may  be  the  true  doctrine  as  to  the  natnre 
of  the  original  compact  of  society,  or  of  the  subsequent  institu- 
tion and  organization  of  govcroments  consequent  tliereoo,  it  is  a 

■  1  T9tkw'*  BImIc.  C<mm.  App-  1<S ;  14. 17%  173 ;  Butia'a  AfpMl  from  bb«  K*w 
to  the  Old  V/kiff  i  OroUm,  B.  S,  di.  5. 1 17. 

■  Ur.  Omu,  In  hU  Ap|wndis  to  the  nimh  nddinD  of  Us  AbridpiMat.  ha*  euvintd 
lUi  Mtj^  vtrj  mnth  al  Utgt.  Smv  Mfxciallf,  f«gm  37  t»  43.  Mr.  L<ocke.  tl»  matt 
■tnnnau  latrtfr  of  libfHj  aad  of  i)m  oifgiMl  towpct  et  tndtiy,  <iiat««iila  nMliitelj 
fur  thk  i»tr«r  of  l^c  nii^orily  to  bind  tbc  Minority,  mi nrMMuyoaoilillMi  ibDw 
mi^imI  IbniMtioii  iJmtietft    hetk*  on  Oowmwl,  B.  9,  oil.  fl^  b«M  |  BB  to  }  lOfc 


CB.  ni.] 


satcrk  op  the  coNSTmmoN. 


2S9 


verjr  uajustifiable  course  of  rcaiioning  to  connect  with  the  theorjr 
all  the  ordinary  doctrineg  applicable  to  municipal  contracts  b«- 
twwn  individuals,  or  to  public  conventions  between  nations. 
Wu  bavo  ftlrwidy  st-cn  that  tJie  theory  itiieU  is  subject  to  many 
qualilicationx ;  but  wht-tbor  true  or  not,  it  is  imgKwsible,  with  a 
just  regnrd  to  the  ubjeets  and  iQt«n%te  o{  soctuty,  or  the  nature 
o[  compActs  of  government,  to  subject  thcni  to  thi-  sanic  con- 
structions and  conditioua  aa  bvlong  to  poeitivo  obligations  crc< 
At«d  between  iudepcndont  parties  contemplating  a  distinct  and 
personal  responsibility.  0»c  of  the  Grst  elementary  principles 
of  all  contracts  is,  to  interpret  them  acconlin^^  to  the  intentions 
and  objects  of  the  parties.  They  are  not  to  be  so  constmed  U 
to  subvert  the  obvious  objects  for  which  they  were  made,  or  to 
lead  to  resnlta  wholly  beside  the  apparent  intentions  of  those  who 
framed  them.  > 

$  332.  Admitting,  therefore,  for  the  sake  of  argnroent,  that 
the  iuRtitution  of  a  government  i»  Jo  bo  deemed,  in  the  re- 
stricted sense  already  suggeatcd,  ainnlHnal  compact  or  contract 
between  each  citizen  and  the  whole  community,  is  it  to  be  con- 
strued as  a  continuing  contract  after  it«  udoptiun,  so  oa  to  involve 
the  notion  of  there  being  still  distinct  and  indejiondent  parttas  to 
the  instrument  capable  and  entitled,  as  matter  of  riglit,  to  judge 
and  act  upon  its  conatmction  acC'^rding  to  their  own  views  of 
its  import  and  obligations  ?  to  resist  tlie  enforcement  of  the 
powers  delegated  to  the  government  at  the  good  pleasure  of  each  ? 
to  dissolve  all  connection  with  it,  whenever  there  is  a  supposed 
breach  of  it  on  the  other  side  1 '  These  are  momentous  ques- 
tions, and  go  to  the  ^'cry  foundation  of  every  govenmient  founded 
ou  the  voluntary  choica  of  tlto  pooplo;  and  they  should  he  seri- 

>  It  «M  llw  otMUmUon  of  Ik*  coMMimiieM  dt^dbl*  turn  Hm  %hn)rf  oT  m 
origiiMl  «ubd«tJii^  MmpKt  bM««M  tlia  people,  upon  the  int  ronnathai  of  cItII  tode- 
Be*  and  ggwraweatii  Oat  iailMed  Dt.  Pvley  to  t^Kt  iL  H#  npin^d  ^*U  if  'A- 
mitMd,  ha  fitndiaMtital  primripha  wtn  «till  diqnitiUe  end  mKeKam ;  that  if  fauDilcd 
oa  CMDfact,  lb*  form  el  ganmmaal,  howent  atmid  «t  iacoiiT«MiBiii,  vu  uOl  nWig> 
Utj  i  mmI  that  «Tn7  vkbtloD  of  tb*  Mmpwt  fnvolnd  ■  Hgbt «(  rcMIko  ud  ■  Jf«- 
wtatiM  of  the  gDnniBML  Pahj'i  Mond  PfaikMphy,  B.  fl,  oh.  S.  Ut.  W'ihm 
(•AMwaM*  Hr.  Jiartim  WiUoa)  uiismI  Ilia  Mate  «tjt«ti«B  Tcty  foraUyJn  tha  PmD«jl> 
nala  Coimtttlon  (or  adofitlBg  the  OoMlitaikfi.  S  EIUot'«  D«t»tB%  2M,  W.  SBH 
Hr.  HiiiM  MiMM»r«  th*  trae  iMaon  ht  olwdfrao*  la  fararaniaM  t«  b*,  not  a  OMitraet 
or  pRHDJM  to  otmy,  but  the  bet  thai  aodrty  ooaM  oet  otbwvlat  fnWit.  1  none'* 
tmj%  EaMflS. 

•  »  Dno-i  Abridg.  eb.  187,  art.  30,  |  18.  p.  BM. 


2iO 


coNarrnrnoN  op  thr  usited  states.        [book  ni. 


ously  inrcstigated  before  we  admit  the  concluBiona  which  maj  be 
drawn  from  one  aspect  of  tiiem.  * 

5  338.  Takp,  for  instance,  the  conatitntion  of  MniuachtisO'ttR, 
vhich  in  its  preamble  contains  the  declarutiua  alrvad}'  ijuutcd, 
that  government  "is  a  social  compact,  by  which  the  whole 
people  corenauts  with  each  citizen,  and  each  citii«n  with  tiio 
whole  government;"  are  wo  to  constrae  that  compact,  after  the 
adoption  of  the  constitution,  u  still  a  contract  in  wkioh  each 
citizen  is  still  a  distinct  party,  entitled  to  hia  rvmody  for  any 
breach  of  its  obligations,  and  authorized  to  separate  himself 
from  the  whole  society,  and  to  throw  off  all  alles-iancc  whenever 
he  sufUMJscs  that  any  of  tliu  ftmdamvntal  principles  uf  that  coin- 
pact  are  iiifrtnKed  or  misconstrued  ?  Did  the  people  iiitead  that 
it  should  he  thus  in  tho  power  of  any  individual  to  dissolve  the 
whole  government  at  his  pleasure,  or  to  absolve  himself  from  all 
obligntions  and  duties  ttioreto  at  his  choice,  or  upon  his  own  in- 
tcrprr-Uitiuii  uf  the  instrtuneut?  If  such  a  ])ower  exists,  where  is 
the  permanence  or  security  of  the  guvommeot?  In  what  manner 
arc  the  rlf;hts  and  property  of  the  eittzcns  to  be  maintained  or 
enforced?  AVbere  are  the  (lulios  of  allegiuncc  or  obedience? 
May  one  withdraw  his  consent  to-day,  and  reassert  it  to-morrow  ? 
May  one  clniui  the  protvctiun  and  assistance  of  the  laws  and  in- 
stittilioiis  to-day,  and  to-morrow  repudiate  them  ?  Hay  one  de> 
Clare  war  against  all  the  others  for  a  auppoacd  infringement  of 
the  constitution  ?  If  he  may,  then  each  one  has  the  san>e  right 
in  relation  to  all  othera;  and  anarchy  and 'confusion,  and 
not  order  and  good  go\'emmcnt  and  obedience,  are  the  ingredi- 
ents which  are  mainly  at  work  in  all  free  institutions  founded 
upon  tlio  will  and  choice  and  compact  of  the  people.  The  ex- 
istence of  the  government  and  its  peace  and  its  vital  interests 
will,  under  such  circumstances,  be  at  the  mercy  and  even  at  the 

<  Mr.  WoodnM  (ElomenUof  Jtiti)p^p.K}aafs,"Ilawenrt>i«liiMMfialbetw*y 
b*  of  m  tnrUI  Mioput,  gcn-<niiii«iit  onf^t  to  be  u»d  li  g*n«nll;  rastiittrad  M  fannjcj 
«a)  «WMMit,  Udt,  or  eijmak  or  »  ml  or  (hoW  eotapwc.  TU*  Ibtocy  iia  asteikl 
bisb  «r  politkal  nehu  :  and  m  •  thMcMJMl  pofait  U  Mt  to»  difimit  M  ba  ariirtitDed, 
ke.  Tfot'thnt  aaeh  cenoBit  U  •alMnquvntlynTOGablaMIliavfll.CTeiiof  tUtliawl*- 
JeeU  «t  the  lUlc,  for  (hat  wauU  (■  nuking  a  put  of  th*  Mmmunlty  njUAl  In  fvwa  lo 
llM  whole  ctfifftatUy,  and  Npwrior  to  Hi*  nl««  ttumof  tttn  tkilr  ettahlbhaMnt.'' 
Bowww qawitonabU  tKtoUitarpodtlMi  aiajr  b«  (bdJ  It  b  opon  to  inanT  a( jMtisM ; 
•N  1  WtlBaa'*  LMtsn«,  417,  IIS,  119,  (SOK  It  borUin  that  ■  rlglit  of  tlia  nuBcvltf 
to  wltMnw  from  Uie  gsraniinaul^  and  to  onrtkrov  Ua  po<nn.  biu  &»  tovodatko  In 
a>7  Jwl  naMning. 


CO.  HI.] 


iTATimB  OF  Tui:  coNsnruTidK. 


241 


caprice  of  a  single  indiTiJiuil.  It  would  not  only  bo  vain,  hut 
luijust  to  ptioi»h  him  for  disturbing  sociotjr,  when  it  is  but  hj  a 
just  cxorciMC  u(  thv  original  riglita  rcflcnrc^t  to  liim  by  tbu  com- 
pact. Tlio  maxiui  ttiut  in  ovcry  f^jvcrnmcut  the  will  of  the 
iiiajoriXv  xlialt  and  Qtiglit  to  govcni  _tli«  ivat,  would  be  tlius  sub- 
verted; and  Mcicty  would,  in  effect,  be  reduced  to  it*  original 
«lcnienta.  The  association  would  bo  temporary  and  fugitive^ 
like  tho»e  voluntary  meetings  among  barbarous  and  savage  com- 
uiunili<!s,  where  each  acts  for  himself,  and  submits  only  while 
it  is  his  plc'imiirc 

I  834,  It  can  readily  be  nuderstood  in  what  manner  contracts 
entered  into  by  private  persons  are  to  be  constniod  and  enforced 
under  the  regular  operationi*  of  an  organi7.ed  government,  I'nder 
Buch  circitmstunces,  if  a  hi-each  is  insisted  on  by  either  side,  tlie 
proper  redress  is  administered  by  the  sorereign  power,  through 
the  medium  of  its  delegated  fimctionaries,  and  usually  by  the 
judicial  department,  according  to  the  principles  established  by 
the  laws  which  c«>mpo»e  the  jurisprudenoe  of  that  country.  In 
such  ft  case  no  person  supposes  that  each  party  is  ut  liberty  to 
InsUt  absolutely  and  positively  ujxjn  his  own  construction,  and  to 
rodrcss  himself  accordingly  by  force  or  by  fraud.  He  is  com- 
pellable to  submit  tlie  decision  to  others,  not  chosen  by  himself, 
but  epiKiinted  by  th«  govcnmient,  to  secure  the  riglits  and  re- 
dress t)>o  wrongs  of  tJic  whole  community.  In  sucli  cases  the 
doctrine  prevails,  inter  If^et  tUmt  arma.  But  the  reverse  maxim 
would  prevail  upon  the  doctrine  of  which  we  arc  speaking,  inter 
arma  tilent  lege*.  It  is  plain  that  such  a  resort  is  not  contem- 
plated by  any  of  our  forms  of  government,  by  a  suit  of  one  cili> 
zen  against  the  whole  for  a  redress  of  his  gi-ie'.-ances,  or  for  a 
Rpecilic  performance  of  the  obligations  of  the  constitution.  He 
may  hare,  an<l  doahtless  in  our  fornis  of  administering  josticQ 
has,  a  complete  jirotection  of  his  rights  secured  by  the  constitu- 
tion, when  they  are  invaded  by  any  other  citizen.  But  that  is 
in  a  suit  by  one  citixen  against  another,  and  not  against  the  body 
politic,  upon  the  notion  of  conflict, 

§  SSo.  It  is  easy,  also,  to  understand  how  comimcts  between 
independent  nations  are  to  be  construed,  and  violations  of  them 
redressed.  Nations,  in  their  sovercijm  character,  are  all  upon 
an  equality,  and  do  not  acknowlclire  any  superior  by  whose  de- 
crees they  are  bound,  or  to  whoso  oplaious  tboy  arc  obedient. 

VOL.  I.  —  IQ 


242 


COKOTtTDITON  OP  THE  TOITBD  STATES.  [OOOK  ttl. 


Whenever,  thorbforc,  any  difTcrcnccB  arise  between  them  as  to 
dio  int«rprctAtioQ  of  a  treaty,  or  of  the  breach  of  its  tcruut,  thero 
is  ao  c-ouimou  arbiter  wliom  they  are  bound  to  acknow-liilgc,  hav- 
ing authority  to  decide  them,  lliere  are  but  three  modes  in 
which  these  differences  can  l>e  adjusted:  first,  hy  oev  negotia- 
tioiu  embracing  and  settling  the  matters  in  dtspiito;  secondly, 
by  referring  the  same  to  some  common  arbiter,  j»ro  hae  vice, 
whom  thny  inrc-iit  with  such  power;  or,  thirdly,  by  a  resort  to 
amu),  which  is  the  u/ft'ina  ratio  return,  or  the  lost  appeal  betwocn 
Hovernigni). 

§  386.  It  seems  equally  plain,  that  in  our  forms  of  govern- 
ment  the  constitution  cannot  contcmplatfi  cither  of  thc-sc  modca 
of  interpretation  or  redress.  Each  citizen  i»  not  suppotied  to 
enter  into  the  compact,  as  a  sovereign  with  all  the  othvn)  as  sov- 
ereign, retaining  an  independent  and  oootgual  authority  to  judge 
and  decide  for  himxcU.  Ho  hut  no  authority  reserved  to  insti- 
tute new  Q<.-gotiations,  or  to  suspend  the  o]>erations  of  the  consti- 
tution, or  to  compel  tho  rcfercnco  to  a  common  arbiter,  or  to 
dcclaro  war  ogninst  the  community  to  which  he  belongs.  > 

§  837.  No  su<.'li  claim  has  ever  (at  least  to  our  knowledge) 
been  asserted  by  any  jurist  or  statesman  in  respect  to  any  of  oar 
State  constitutions.  The  uudoratunding  is  general,  if  not  uni- 
Tersal,  that,  having  been  adopted  by  the  majority  of  the  people, 
the  constitution  of  the  State  binds  the  whole  community  proprio 
in09r«;  and  is  unalterable,  unless  by  the  consent  of  the  majority 
of  the  people,  or  at  least  of  the  qualified  roturs  of  Uie  Slate,  in 
the  manner  prescribed  by  the  constitution,  or  otherwise  provided 
for  by  the  majority.  No  right  exists,  or  is  supposed  Ut  exist, 
on  tho  part  of  any  town  or  county,  or  otiier  organized  body 
within  tlie  State,  short  of  a  majority  of  the  whole  people  of  the 
8tat<.s  to  alter,  suspend,  reflist,  nr  dii»nlve  the  operatinns  of  that 
constitution,  or  to  witJidraw  themselvea  from  its  juriadiction. 
Uuch  lees  is  the  compact  supposed  liable  to  interraplion  or  sus- 
pension or  disdulution  at  the  will  of  any  private  citizen  upon  his 
own  notion  of  ils  obligaliuns,  or  of  any  infringements  of  them 
by  the  constituted  authorities.*  The  only  rodrcas  for  any  such 
infringentcnts,  and  the  only  guaranty  of  individual  rigtita  and 
property,  are  understood  to  consist  in  the  peaceable  a{>peal  (o  the 
proper  tribunals  constituted  by  Ihe  govenunent  for  such  puiv 

1  Dhb'*  Aff.  I II,  p^  ss,  M. 


CB.  III.] 


NATURE  OP  THB  COKSTlTUnW. 


248 


poses;  or  if  these  should  fail,  by  the  altimate  appeal  to  the  good 
aenso  and  intogritj  and  justice  of  the  majority  of  tho  people 
And  UiiH,  according  to  Mr.  I.iOcke.  is  the  true  m-iisi^  of  the  orij^- 
nal  compact,  by  which  every  individual  has  surrendered  to  the 
majority  of  the  society  the  right  permanently  to  control  and  di- 
rect  the  operationn  of  ^vernmrnt  thei-cin. ' 

§  'i&9.  'Hie  true  view  to  be  taken  of  our  State  constitutions  fa, 
that  they  are  forma  of  government  ordained  and  established  by 
the  people  in  their  ori|pnal  novereign  ca[tacity  to  promote  their 
own  happinesa,  and  |M^rmanently  to  secure  their  rifihtK,  property, 
independeoce,  and  common  welfftre.  The  langua^^  of  nearly  all 
theac  State  constitutions  is,  that  (he  people  do  ordain  and  estab- 
lish this  cunstittitiun;  and  where  these  terms  are  not  ospresaly 
lucd,  they  arc  necessarily  implied  in  the  very  sub«tuncc  of  the 
frame  of  government.'  Tbey  may  be  deemed  compact*  (thou^ 
nut  generally  declared  so  on  their  face),  in  tlio  acnao  of  their 
being  founded  on  the  voluntary  consent  or  agreement  of  a  major- 
ity of  the  qualified  voters  of  the  State.  But  they  are  not  treated 
as  contracts  and  cnnvontiona  Mween  independent  individuals 
and  communities  having  no  common  umpii-e.*  'Hie  language  of 
tbesc  instruments  is  not  the  usnnt  or  approjirinte  language  for 
mere  matters  resting  and  forever  to  rest  in  contract.  In  general 
the  impurt  is,  that  (h«  pet^le  "ordain  and  establish,"  that  is, 
in  their  sovereign  capacity,  meet  and  declare  what  shall  be  the 
fundamental  Law  for  the  gnvemnifnt  of  thomsielveit  and  their 
posterity.  Even  in  tlie  constitution  of  Massachusetts,  which 
more  tlian  any  other  wears  the  air  of  contract,  the  compact  ia 
declared  to  be  a  mere  "constitution  of  civil  government,"  and 
the  jieople  "  do  agre«  on,  ordain,  and  establish  the  following  dec- 
laration of  rights  an<l  frame  of  government  as  the  constitution  of 
gOTcmment."  In  this  very  bill  of  rights  tho  people  are  de- 
clan-d  "to  have  the  sole  and  exclusive  riglit  of  governing  them- 
selves, as  ft  free,  sovereign,  and  independent  State;"  and  that 

■  l^ko  on  GormBtM,  &  ^  tk.  S. $(»S W  lt>0 ;  eh.  19.  SHI  UO,  SH.  UO.  34S ; 
I  Wtbun'*  U<r  UKtarw,  810.  Kt.  <17, 418.  Ur.  Dn«  (Apf.  p.  St)  Mp,  thu  if  tbtB 
be  i&f  ooinpacti  It  1*  •  oMiifaai  l«  nuk*  «  OMiUftuUon  ;  aiid  thM  (to«Mv  tbo  ^twtmwil 
U  il  an  end.  I(  ihm  bmoma  w  octcnlM)  ountnrrt.  isil,  Mcofding  to  Uia  ialort  of  th« 
pMUcs,  •  fbadmicnUl  Uw. 

*  Daor'i  An>.  %i  19.  17,  pJL  S»,  DO  1  Id.  I  It.  pp  SS,  it. 

•  H«B»ixlQ*,KkBiNi.  JnitiKaliir.  l..S,ch.  <,ff  lOStollSifSTurobaU,  Rdiwa:. 
p.M)i*6. 


244 


C0K3T1TUT10K  OF  THE  UNITED  BTITES.  [bOOK  III. 


"tlicy  have  an  incontestable,  tiiialienable,  ftnd  indefcaAible  right 
to  institute  government,  and  to  reform,  alter,  or  totally  change 
the  a«me,  wlien  their  protection,  safety,  proftiKrity,  and  happi- 
ness reiuire  it"  It  is,  and  acconlingly  has  always  been,  treated 
aa  a  fundamental  law,  and  not  as  a  mere  contract  of  (^vemroent, 
during  the  good  pleasure  of  all  the  iiersona  who  were  originally 
bound  by  it  or  assented  to  it.' 

§  389.  A  constitution  is  in  fact  a  fundamental  law  or  baaia  of 
government,  and  falla  strictly  within  the  dofmitiun  of  law  as 
given  by  Mr.  Jtiatice  Blackatoue.  It  is  a  rule  of  action  prc- 
BCribed  by  the  supreme  power  in  a  state,  regulating  the  rights 
and  duties  of  the  whole  community.  It  is  a  rtUe,  aa  contradia- 
tingiiished  from  a  temjwrary  or  sudden  order;  )>ermancnl,  uni- 
form, and  universal.  It  Is  aUo  called  a  rule,  bo  distinguish  it 
from  a  compact  or  agroomeat;  for  a  compact,  lie  odds,  ie  a  ]>rDin- 
Ise  proceeding  from  us,  a  law  is  a  command  directed  to  us.  The 
language  of  a  ouuii>act  is,  I  will  or  will  not  do  tliis;  that  of  a 
law  is,  Thou  shalt  or  slialt  not  do  it*  "In  compacts  we  onr- 
■elvca  determine  and  promise  what  shall  be  done  before  we  are 
obliged  to  do  it  In  laws  we  are  obliged  to  act  without  ourselves 
determining  or  promising  anything  at  alL"*  It  is  a  rule  pre- 
scril^;  thnt  i«,  it  ia  laid  down,  promntgated,  and  established. 
It  is  proscrilfed  by  t)ic  sitprenio  power  in  a  state,  tliat  is,  among 
!»,  by  the  people,  or  a  majority  of  tliem  in  their  original  sover- 
eign ca|iacity.  Like  the  ordinary  municipal  lairtt,  it  may  be 
founded  upon  our  consent  or  ttiat  of  our  represeiitatiTcs;  hut  it 
derives  its  ultimate  obligatory  force  as  s  late,  and  "not  as  a 
compact 

§  340.  And  it  is  in  this  light  that  the  language  of  the  Consti- 
tution of  the  United  States  manifestly  contemplates  it;  for  it 
declares  (article  iJth)  that  this  Constitution  and  the  laws,  ice, 

>  Hi.  tmttict  Ctam,  in  Wan  v.  UjUmt.  S  ObH.  R.  1M,  deekrw  the  constitetwn  ol 
•  Stsu  lt>  t»  Uw  (tmLwtatol  law  d  tli«  Sl«tc.  Mi.  DiuiBbMwidigrBat(ora(MiiI,lbu 
K  oMutiiatini  b  a  thing  eomtitulnl.  ui  iMtniinnil  onkliwd  mi  MUUUud.  If  • 
coMoUttM  IhwM  •  MMttMtlMk  for  ■  Sut^  mkI  Hi*  pMpU  thanof  ntrt  la  ihdt  ttnmal 
«MiDIM(  uiJ  ftUj  it,  ll  b  a  «OMtitBtioa  g»d>bMd  ud  wtabtukMl.  «ii<l  not  a  Mnpaet, 
or  «a«inct  taonit  ih*  MontiM.  So  if  tlMj  meti  in  •mral  hmu  uiJ  nOitj  it,  It  la  a 
«OMpMt  tmo^  littm.  A  aonfwt  anoig  fltatea  b  a  eonibdMattaii.  ami  b  almTS  aa 
naanit  (la  wm  the  M  canftdwition),  ami  MnraMoalitatiaB.  V  Uaa*'aJtl»U|^cBt, 
ek.  }t7.  art,  «a.  t  U.  P-  UO. 

■  1  IBiek.  Cc«nin.  SS,  44,  *&    8m  al*»  Bntbiwiai.  Put  1,  cti.  S.  p.  U,  K 1. 4, 

■  1  BlaiL  CouuB.  4fi. 


CH.  in.] 


KATDRB  OP  THE  CONSTtTDTIOK. 


24d 


and  treaties  mtido  nndcr  the  authority  of  the  TTnitcd  States, 
"»hall  be  the  supreme  law  of  tlic  lund."  This,  aa  hsm  Iwen 
justly  observed  hf  the  f'^denUtst,  result*  from  the  very  nature  of 
political  itiittibitiona.  A  law,  hy  t}ie  very  mcanini;  of  the  terms, 
includes  siiprema<;y. '  If  individuals  enter  into  u  stutc  of  aociety, 
the  laws  of  that  aociety  munt  be  the  supreme  regulator  of  their 
conduct.  If  a  number  of  political  flocietiee  enter  into  a  larger 
political  Bociety,  the  lawB  which  the  latter  may  enact,  pursuant 
to  the  powers  intrusted  to  it  by  its  constitution,  must  he  supreme 
over  those  societi(«  and  the  individuals  of  wliom  thoy  arc  com- 
po«c<I.  It  would  othcrwiBC  be  a  mere  treaty,  dependent'  on  the 
good  faith  »A  th«  parties,  and  not  a  ffwemtneni,  which  is  only 
another  word  for  political  power  and  supremacy,'  A  State  con- 
stitution is  then  in  ft  just  and  appropriate  sense  not  only  a  Zctw, 
but  a  supremo  law,  for  tho  government  of  the  whole  people, 
within  the  range  of  the  powers  actually  contemplated  and  the 
_ri^it  secured  by  it.  It  would  indeed,  bo  an  extraordinary  ose  of 
igungo  to  consider  a  declaration  of  rights  in  a  const  itntion, 
and  especially  of  ri^its  which  it  proclaims  to  be  "unalienable 
and  indefeasible,"  to  be  a  matter  of  contract,  and  rvating  on 
such  a  basis,  rather  than  a  solemn  recognition  and  adnussion  of 
those  rights,  arising  from  the  law  of  nature  and  the  gift  of  Prov- 
idence, and  incapable  of  being  transferred  or  surrendered.' 

>  Tlu)  F«<l«nlMt,  Ko.  83.    8MBbo,NeLl9.  ■  Tb«  FedtniUM,  So.  SC    ' 

■  Ur.  Adttui,  In  liU  omUou  ob  tb«  lib  of  July,  l&ll,  vte  the  roJlowing  luigoaga: 
"la  th*  coiutitutlon  oriklneonunoowMtlb  (UaMMcluMott«]itUi)ccktRl  tlMttbebodj 
poHtia  U  lamti  hj  «  wlwiUry  mmcUUoii  of  tadividuU:  ihU  il  b  a  Hxial  OMn> 
pKUkis.  Tbe  bed;  politic  el  Uu  DnludSUU*  vh  fotaacil  li;  kvoliintatTamcUtloB 
ot  th*  ftofU  «l  tlw  nnltcd  colotuM.    TW  DrclantioM  of  Inikpoiikfiw  wia  ■  wcial 

a>m|M4,by  whicklliewlwJfF*"!''**''"''"'**^^''^**^**^''^''^  tlwnaitedMtania^ 
ud  cwfa  dUaan  •ith  tliB  whob  pM|4*,  tlwt  Iha  onilod  ooloatni  vnr,  and  «f  riRlM 
ought  to  be.  frw  uid  indcpciultat  SlalM.  To  thl*  co«pM4,  naion  wai  ai  yitti  m  frr«- 
doDi  and  iiul«[ini>leoM.  FrniD  the  boui  of  (hat  lnd«|mdrac«  no  on*  ot  ih#  SiatM 
■rlioM  (aupir  win  fuiit*  to  it  oonld,  witbont  ■  riolatSon  of  Ibat  priuiilit*  oonpact, 
MMda  m  MpuaW  ftom  lb*  rant.  Rach  tnw  pledged  to  all ;  and  aU  were  pledged  to 
«adhatb«rbTaaciqe«rtornu1.  wtlbout  limiutlon  of  Unu,  in  tho  pmwiKc  of  Alnugbtjr 
(M,  and  pradaimad  to  all  touikM.  1W  oolodita  wtn  not  daduol  Ui  b«  wnnlyB 
Sam.  Til*  tcnn  '  uvnalga '  U  not  orcn  to  bo  fonad  In  tb«  Dfclanlio*.'*  Afpiu, 
"  Out  DNbiatiui  of  ladcpfadnnor,  oni  Omrcdcimtian,  on  ConMitntian  of  the  Unlttd 
StiUn,  and  all  oui  Stat*  (ooalilalliini,  Klthont  a  dnglo  axotfAkm,  luro  baen  •nhimtuj 
^^enfteta,  dcriring  all  thrir  a«tborilr  tnm  lb«  trmDmmnt  of  Ibo  paniw  to  thnn." 
^Pwd  h«  pfMMda  to  utatathat  tha  modem  itoctrina  of  mtUfioatian  of  tb«  U««  of  tha 
^^L  CdIm,  by  •  ilnicle  Stata,  U  a  anladam  of  luigMpi  aad  Uapicta  •pV-oaatmUoliou,  and 
gsM  lo  the  dMlriMllan  of  Oa  gvranuBWt  aad  tha  tlaloa.    It  u  ptiin,  tnm  Uu  >hol« 


246 


ION  OF  TOE  DKll 


[book  in. 


§  fi41.  The  resolution  of  die  convention  of  the  Peers  and 
Cominona  in  1688,  which  deprived  King  James  the  Second  of  the 
thrnno  of  Kngland,  may  pL-rhup^  be  tbouf;hl  by  some  persons  to 
justify  the  doctrine  of  an  orieinal  comfiavt  of  goTornment  in  the 
fcnse  of  those  who  (Iih-Hi  the  Constitution  of  the  United  Statts  a 
treaty  or  lea^e  between  the  Slat«8,  and  rcstiu{i  nwrely  in  coo- 
tract.  It  is  in  the  follon-iug  vords :  "  Ko^olvcd,  that  Kiiiff  JomCB 
tho  Second,  huvinj;  endeavored  to  subvert  tlio  Coustituliou  of  the 
kingdom  hy  brtakittff  Ike  oriffinat  eontraet  bttween  kioi/  and  peopU, 
and  by  tliu  advice;  of  Jo»iiit8  and  other  viciEed  per»oii8  having 
Tiukt<.-d  tbu  fiuidnnivutnl  lawn,  and  withdrawn  himself  out  of  the 
kingdom,  hatli  abdicated  the  government,  and  that  the  throne  is 
thereby  become  vacant" ' 

§  !j42.  It  is  well  known  that  there  was  a  most  scrions  differ* 
cuce  of  opinion  between  the  House  of  Peers  and  the  House  of 
Commons  iii>on  the  laugoage  of  tliis  resolution,  and  eapeeially 
upon  that  jiart  which  declared  the  abdication  and  vacancy  of  the 
throne.  In  consetjuence  of  which  a  free  conference  was  held  by 
committees  of  both  housca,  in  which  the  moat  animated  dotates 
took  pkc«  between  some  of  tlie  most  diatingnishod  m^n  in  the 
kingdom.  But  the  Commons  adhering  to  their  vote,  the  Lords 
finally  acceded  to  it  The  whole  debate  is  preRen-ed,  and  the 
reasoning  on  each  side  ia  given  at  large.*  In  the  course  of  the 
debate  notice  was  frequently  taken  of  the  expression  of  breaking 
the  original  contract  between  king  and  peojtie.  The  Bishop  of 
Ely  said,  "1  may  say,  that  this  breaking  the  original  contract  is 
a  language  that  hath  not  been  long  used  in  tliis  place,  nor  known 
in  any  of  oar  law-books  or  public  records.  It  is  sprung  up,  but 
as  taken  from  some  late  authors,  and  those  none  of  the  best  re- 
ceived; and  the  *-ery  phrase  mi^tit  licar  a  great  debate,  if  that 
wore  now  to  be  spoken  to."  "The  making  of  new  laws  being  as 
much  a  part  of  the  orif^inal  compact  as  the  observing  old  oaos, 
or  anything  else,  wo  are  obligi_-d  lo  pursue  those  laws  till  altered 
by  the  legislative  power,  which,  singly  or  jointly,  wltliout  the 
royal  assent,  I  suppose  wu  do  not  protend  ta"    *^We  must  think 

WMawiBg  a(  Hr.  AtUsM,  Uwt  wlian  he  (faik*  of  tb*  OooMiMtiaa  m  k  eooqwrt,  Iw 
iMtna  M  Mors  tbtn  ih^  li  ii  •  votaaurjr  (ml  MtNM  MHnt  oT  Um  laopif  to  wkfit  it. 
a  A  torwtol  gartrnmnAt  mi  Mt  *  treuf  «bl%»lioa  Ut  b»  »tnipi«l  rt  will  hy  » tJa-^ 

>  1  Bl*di.  Cmiub.  311,  nS.  Stt. 

*  IVUuncnurr  Debo-.Mv  IMS,  tdU.  1712,  p.  SU,  «  wf. 


OR.  ni.j 


MATDBE  OP  THE  OONSTtTtmOtf. 


247 


Rare  that  meant  of  the  compact  that  wiut  mado  at  fimt  time,  when 
th«  govcmm«ut  was  firat  instituted,  and  the  conditioiu,  that  each 
part  of  the  ^vcrnment  ahould  olifterve  on  their  part;  of  which 
thin  wag  inottt  fundamental,  that  king,  lords,  and  commona  In 
Parliament  aascrabled  shall  hare  the  power  of  making  new  laws 
and  altering  of  old  onea."'  Sir  Gporp;  Treby  said,  "We  arc 
gone  too  far,  when  wo  oBFer  to  iB([uire  into  the  original  contract, 
whether  any  such  thing  i»  known  or  understood  in  onr  law  or 
Conatitution,  and  whether  it  be  new  lan^age  among  us. "  "l-^rst, 
it  is  a  phrase  u»<.>d  by  tlie  learned  Mr.  Hooker  in  his  book  of 
Eccli'siuatieul  Polity,  whom  I  ineiitiou  oa  u  valuable  authority," 
Ac  "  But  1  huTC  yet  a  greater  authority  than  tltis  to  influence 
this  mnttxir,  and  that  is  your  lurdship's  own,  who  hare  agreed  to 
nil  the  vote,  but  this  word,  abdi<'afe4,  and  the  vacancy  of  the 
throne."  He  thcu  supposes  the  kinjf  to  say,  "The  title  vS  king- 
ship I  hold  by  original  contract  and  the  fundamental  cunstitu- 
tions  of  the  government,  and  my  Buoc«s8ion  to  uiul  {x«sessioo  of 
the  crown  on  these  terms  is  a  part  of  that  contract  This  pftrt 
of  tlie  eontract  I  am  weary  of,"  Ac*  The  l-Inrl  of  Nottingham 
said,  "I  know  no  laws,  as  laws,  hut  what  are  fundamental  con- 
stitalious,  as  the  laws  arc  neccssarj'  so  far  to  support  the  foun- 
dation,"' .Sir  Thomas  Lee  said,  "TIms  contract  was  to  settle 
the  Constitution  as  to  the  legislature;  and  it  is  true  that  it  is  a 
part  of  the  coiitraet,  the  making  of  laws,  and  that  those  laws 
should  oblige  all  sides  when  made.  But  yet  not  so  as  to  exclude 
this  original  constitution  in  all  governments  that  commence  by 
compact,  that,  there  should  be  a  power  in  the  states  t»  make  pro- 
vision in  all  times  and  upon  all  or4!ssion8  for  extraordinary  cases 
of  necessity,  such  as  ours  now  is,"*  Sir  GoorgB  Treby  again 
said,  "The  laws  made  are  certainly  part  of  the  original  contract, 
and  by  the  laws  made,  Ac,  we  are  tied  up  to  keep  in  tlRi  heredi- 
tary line,"  Ax,'  Mr.  Sergeant  Dolt  (afterwards  Lord  Chief  Jus- 
tice) said.  "The  government  and  magistracy  are  all  imdor  a 
truat,  and  any  acting  contrary  to  that  trust  Is  a  renouncing  of 
the  trust,  though  it  be  noi  a  renouncing  by  formal  deed.  For  it 
la  a  plain  declaration  by  act  and  deed,  though  not  in  writing, 
that  b«  who  hath  the  trust,  acting  contrary,  is  a  disclaimer  of 

>  Piril— Mfi?  IJxhiUi,  leM,  (diL  1712,  I>^  S17.  su. 

«  Id.  pp.  121.  SSS,  Tit.  ■  Id.  pp.  SIS.  130. 

*  14.  p.  2t«.  *  Id.  ^  i». 


248 


COSSTITtmON  OP  THE  UNITED  BTATIS.  [BOOK  III. 


the  trnsL"*  Mr,  Sergeant  Uaj^nard  iwid,  "The  Constitution, 
notwitlwtaDding  tho  vscancr,  in  the  Btme.  The  laws,  that  are 
the  foundutioiia  uud  rules  of  that  Coiutitutiou,  ar«  thv  sumc. 
But  if  there  Ik-  in  onjr  iiwtujicc  a  breach  of  that  Oouslilution, 
that  will  t)0  on  olxlicatiou,  and  that  abdicatiou  will  ooiifor  a 
vacaitcv."'  Luni  NoUinf^iam  Batd,  "Acting  against  a  mail's 
truHt,  gay»  Mr.  iv^rgeant  Holt,  is  a  renunciation  of  that  trust 
I  agree  it  is  &  violation  of  his  trust  to  act  contrary  to  it  And 
he  is  a<vountable  for  that  violation  to  answer  what  the  trust 
suffers  out  of  his  own  estate.  But  I  deny  it  to  be  presently  a 
renunciation  of  tlie  trust,  and  that  such  a  one  is  no  longer  a 
trusttw."* 

§  348.  Now  it  is  apparent  from  the  whole  reasoning  of  all  the 
parties,  that  thejr  were  not  considering  how  far  the  original  m> 
stitution  of  govemtncnl  was  founded  in  compact,  that  is,  how  far 
society  itself  was  founded  upon  a  social  compact  It  woa  not  a 
<)U€8tion  brought  into  discuasiun,  whether  each  of  the  people  con- 
tracted with  tho  whole  people,  or  each  department  of  the  govern- 
ment with  al)  others,  or  each  orgaiiited  community  within  the 
realm  with  all  others,  that  there  should  be  a  frame  of  government 
which  should  form  a  treaty  between  them,  of  which  each  was  to 
judge  for  himself,  and  from  which  each  was  at  liberty  to  withdraw 
Bt  his  pleasure,  whenever  he  or  they  supposed  it  broken.  All  of 
the  speakers  ou  aiP  sides  were  agreed  that  the  Constitution  was 
not  goue;  that  it  remained  in  full  force,  and  obligatory  upon 
tho  whole  people,  including  the  laws  mode  under  it,  notwith- 
standing the  violations  by  the  king. 

§  844.  The  real  point  before  them  was  U|>on  a  contract  of  a 
very  different  sort,  a  contract  by  which  the  king  uixm  taking 
upon  himself  the  royal  office  undertook,  and  bound  himself  to  the 
whole  people  to  govern  them  according  to  the  laws  and  constitu- 
tion of  the  government  It  wan,  then,  deemed  a  contract  on  his 
part  singly  with  the  whole  people,  they  constituting  on  aggregate 
body  on  the  other  part  It  was  a  contract  or  pledge  by  the  ex- 
ecutive, called  upon  to  assume  on  hereditury,  kingly  uutliority, 
to  gorern  according  to  the  rules  prescribed  by  the  form  of  gov- 
ernment already  instituted  by  the  people.  Tlie  constitution  of 
government  and  its  limitaiions  of  authority  were  sujtposcd  to  be 

t  PkriiuMsarr  DtbUe*,  ICU;  edit.  ITU,  ^  SIS. 

*  u.  p^  as.  sit.  *  u.  p.  saoi 


CH.  ID.] 


KAtDBS  OP  THE  OOXBTITUTIOM. 


249 


fixed  (no  matter  whether  in  fiction  only  or  in  fact)  ontwcdcntly 
t«  hia  being  chosen  to  the  kingly  ollice.  Wc  can  readily  under- 
Btand  liuw  suoh  a  contract  may  be  formed  and  continue  even  to 
exist.  It  n-as  actually  mudv  with  William  the  Third,  a  few  days 
afterwards;  It  huui  been  recently  mode  iu  France  hy  tCing  l-uuis 
Philippe,  upon  the  expulsion  of  tlic  old  line  of  the  Bourbons. 
Bat  in  botli  the»e  coses  the  coimtitution  of  gorcmment  was  sup- 
posed to  exist  inijepeiident  ol,  and  nutccedcnl  bo,  this  contract. 
Theru  was  a  mer«  call  of  a  partjoular  party  to  the  throne,  atreadf 
cetablisbed  in  the  jiovernment,  ujwn  certain  fniiilftint^ntal  condi- 
tions, which  if  violated  by  the  incumbent  he  broke  his  contract^ 
and  forfeited  his  right  to  tlie  crown.  But  the  constitution  cf 
go^x-mmcnt  n^mained,  and  tlie  only  point  left  was  to  supply  the 
Tacancy  by  a  new  choice, ' 

§  345.  Even  in  this  case  a  part  of  the  people  did  not  undertake 
to  declare  the  compact  violated  c»r  the  throne  vacant.  The  dec- 
laration was  made  by  the  peers  in  their  own  right,  and  by  the 
commons  by  their  roprvsontativcs,  both  being  awcroblcd  in  ooo- 
Tention  expressly  to  meet  tlie  exigency,  "For,"  says  Block- 
Stone,  "  whenevur  a  question  arises  l>etwoen  tlie  society  at  large 
and  any  magistrate  vested  with  powers  originally  delegated  by 
that  society,  it  must  be  decided  by  the  voice  of  that  society  itsell 
There  is  not  upon  earth  any  other  tribunal  to  resort  to. "  ' 

§  846.   This  was  precisely  the  view  entertained  by  the  great 

iiCTolutioiuiry  Whigs  in  1688.     They  did  not  declare  the  govern- 

*ineat  dissolved,  because  the  king  had  violated  the  fundamental 

laws  Olid  o4)ligution8  of  the  Constitution.    But  they  deelarcd  that 

those  acts  amounted  (o  o  renunciation  and  abdication  of  the  gor- 

emraent  by  him ;  and  that  the  throne  was  vacant,  and  must  bo 

sopplied   by   a   new   choice.     Tlie  original   contract   with   him 

[  was  gone.     Ho  had  repudiated  it,  and  lost  all  ri^ta  under  it 

But  these  violations  did  not  dissulvo  tht;  social  organization,  or 

vary  tin-  existing  Constitution  and  laws,   or  justify  any  of  the 

subjects  iu  renouncing  their  ov.ii  allegiance  to  the  government; 

but  only  Iu  King  James.'    In  short,  the  govermuent  was  no  more 


t  1  Bbck.  Cotna.  312,  SIS.  ■  1  SOtA.  CMdib.  til.  213. 

■  1  BUcIc  ComM.  313,  SIS.  Tha  MDM  dontriM*  mr*  >TO««d  \>j  Ihn  gmi  Vliig 
Itadonoftlw  llwueorraaMiMMUi  tb*  irialof  Dr.  SMbvTvrrft  bnlTOS.  Ur.  RmA«, 
In  hit  Appmi  Gram  Um  Kc*  to  Out  (Nd  Whigi,  ha*  prm  «  Hmoun;  of  Ik*  imnnli: 
'  ami  wSffotuA  it  bj  oepioos  utnct*  (ram  Um  trkl. 


coNSTironoN  OP  the  dmtkd  states.        [book  m. 

dissolved  than  otir  ou-n  would  be  if  the  Prosidcat  of  tlii-  Unit«d 
Statts  eliotiid  violate  liis  constitutional  diitic«,  and  upuu  un  im- 
peai-Iitnout  and  trial  aliould  be  removed  from  oSvx. 

§  347.  There  is  no  analogy  whatsoever  between  tliat  ca»e  and 
the  g«)v«rnment  of  the  Cnited  States,  or  the  social  Qam\iact,  or 
original  con«titutioii  of  goverumvnt  adopted  by  a  people.  If 
there  were  rtnj  analojry  it  would  follow  that  vverj  violation  of 
the  Oitutitution  of  tho  Uoitod  Htutos  by  any  depurtuient  of  the 
govenuBont  would  amount  to  a  renunciation  by  the  Invumbont 
or  iiiciimbt-nta  of  all  rii^hta  and  powi^m  conferred  on  that  depart- 
ment by  the  Coiuitituliua,  ipto/acto,  k-aviu);  a  vacancy  to  be 
filled  up  by  a  new  choice;  a  doctrine  tliat  baa  never  yet  been 
broached,  and  indeed  is  utterly  unmaintainable,  unlcuA  that  vio- 
lation ia  ascertained  in  some  mode  known  to  the  Const iiutioii, 
and  a  removal  takea  place  accordingly.  For  otherwiao  such  a 
Tiolation  by  any  functionary  of  tho  goTCmmeut  would  amount  to 
a  renunciation  of  the  Conatitution  by  all  (he  people  of  the  United 
States,  and  thus  produce  a  diaaolulion  of  the  governnieDt  m  m* 
itanli ;  a  doc-lrioo  SO  extravagant  and  80  aubveraive  of  the  rights 
and  liberties  of  tlio  people,  and  t)0  utterly  at  war  witli  all  princi- 
ples of  L'ommon  aense  and  common  justice,  tlint  it  could  never 
find  its  way  into  public  favor  by  any  ingenuity  of  reaaonir^  or 
any  vagarira  of  theory. 

§  848.  In  short,  it  never  entered  into  tho  heads  of  the  great 
men  who  accomplished  the  gtorioua  Re^'oUition  of  1688  that  a 
constitution  of  government^  however  originating,  whether  in 
positive  compact  or  in  silent  assent  and  acquiescence,  after  it 
was  adopted  by  tho  people,  remained  a  mere  contract  or  treaty, 
Op<^'n  to  t|iie9tion  by  all,  and  to  be  annihilated  at  the  will  of  any 
of  Ibem  fur  uny  BUpfMsed  or  real  violations  of  its  provisions. 
They  supposed  that  from  tho  moment  it  became  a  Constitution 
it  OMSod  to  Ih-  a  compact,  and  liecume  a  fundamental  law  of  al>- 
flolnte  paramount  obligation,  until  changed  by  the  whole  people 
in  the  manner  preseriltt-d  by  its  own  rules,  or  by  the  implied  re- 
sulting |K>wer  l>elonging  lo  tike  people  in  all  caaca  of  neceanity  to 
provide  for  their  own  safety.  Their  reaaoning  was  addrcased, 
□ot  to  the  C<Hi8titutian,  but  to  the  functionariea  who  were  called 
to  administer  it.  Tlicy  deemed  that  the  Constitution  was  im- 
mortal, and  could  not  be  forfeited :  for  it  was  prescribed  by  and 
for  the  benefit  of  the  people.     But  tliey  deemed,  and  wisely 


CH.  itr.] 


KITCBB  OP  TBB  OOXSTITtmCHI. 


deemed,  that  the  magiNtracy  in  n  triii^t,  »  fttlonin  public  trust; 
tnd  he  who  violates  hiH  (lutie.i  tarfeita  bis  own  right  to  oRice,  but 
.cannot  forfeit  the  righta  of  the  people. 

§  S49.    Tlic  subJL-et  hiu  Ijcen,  thua  far,  considered  chiefly  in 

reference  to  tbo  puiut  bow  far  govLTumeut  is  to  he  considered  as 

ft  eompael,  in  Die  svuse  of  a  contract,  as  contradiatingi^isbed  from 

an  act  of  solemn  ackuowlcdgiucnt  or  auicnt;  and  bow  far  our 

Stute  constitdlioiis  are  to  be  deemed  such  contracts,  rathor  than 

Amdamentnl  laws  prescribed  by  tlto  sovcreif^i  power.     The  con- 

eluaion  to  which  we  have  arrived  is,  that  a  State  cotwtitution  • 

is  no  further  to  be  deemed  a  compact  than  that  it  is  a  matter 

<d  consent  by  the  people,  binding  them  to  obedience  to  its  requi- 

BJtiona ;  and  that  its  proper  character  is  that  of  a  fundamental 

law  pn»cribcd  by  the  will  of  the  majority  of  the  people  of  the 

[fitate  (who  are  entitled  to  presenile  it),  for  the  Kovcmniont  and 

ITegulutiou  of  tlie  whole  people.'     It  binds   them  OS  a  supremo 

nile  ordained  by  the  sovereign  power,  and  not  merely  as  a  volun- 

tarj-  contract  entered  into  by  parties  capable  of  contractinfe  and 

binding  thcmselvcM  by  such  terms  as  they  choose  to  scIccL'    If 

I  this  bo  a  correct  view  of  tlic  subject,  It  will  enable  us  to  enter 

'upon  the  oth4>r  pnrts  of  the  proposed  diiicdssiou  with  principles 

to  ^lide  us  in  the  illustration  of  the  oontroversy. 

S  850.  In  what  light,  then,  is  the  Constitution  of  the  United 
States  to  be  regarded  ?  Is  it  a  mi-ro  cuni[«ct,  treaty,  or  confed- 
eration of  the  8tates  camiMwinf;  the  Union,  or  of  tlie  people 
thereof,  whereby  each  of  the  sevcnd  States,  and  the  peopl« 
thereof,  have  respectively  bound  tttemselves  to  each  other  \  Or 
is  it  a  form  of  i^vomment  which,  having  been  ratiHed  by  a  ma- 
jority of  (he  people  in  all  the  Klates,  is  obliiiatory  upon  tht-ra,  as 
the  pn-scribMl  rule  of  condnct  of  the  sovereign  power,  to  the 
extent  of  its  proviiiious  ? 


)  It  b  in  Vk\»  •inia>  thai  Mr.  CMif  Jaulee  J>j  b  to  b>  imdantool  la  Ua  •pialoa  to 
CUibalsi  «L  <'H«ticiii  (a  lull.  R.  41»),  «bn  h*  mj\  "Everjr  State  iMiirtitmian  i»  ■ 
QBmVct,  (MiUhruri  betwotn  tha  dtSsMu  of  tfa*  SUt*  Ui  ipmra  UiMiMdna  b  ■  «t- 
lala  niaannr ;  ■nd  lbs  Conitiintka  oT  Uw  Dniled  SUIm  i*  Ukawlie  a  «oap*M,  nwdo  \if 
lh«  peopio  «f  tha  Cnltfll  BuM  UgDVom  the—itrw^  m  to  gfitil  ot^teli^  in  ■  tartala 
nMfiarr."  Th*  ontoii  atanilHitly  *hMn  UmI  Iw  osaMend  it  ■  hndMuiiU)  )■«  of 
govtniiMat,  ukd  that  lu  foir«n<IUl  not  natoo  awwtwty.lwtiww  wipw»anilw«w 
UtiaacaiafMdbf  diajadhuIdapMtinant;  aad  ikat  the  Slataa  vtto  bMnil  to  obay. 

•  H<iiiiMd>K  Elain.  Juiia  ^'■tuI.  U  S,  ok.  9,  H  IW  to  US  i  S  TusboU'*  Heiatob 


S62 


CONffnTDTION  OF  THE  CNITED  STATES.  [BOOK  Ol. 


^ 


§  851.  Let  us  coiisiiler,  in  tlto  first  place,  whether  it  ia  to  be 
deemed  a  compnct.  Ely  Ihis  we  do  not  meAn  mm  act  of  solemn 
assent  by  the  people  to  it,  as  a  form  of  government  (of  which 
there  is  no  room  for  douht);  but  a  contract  impofiing  mntual 
oliligations  and  contemplating  the  permanent  BultAiRtcuce  of  par- 
ties having  an  independent  right  to  oonstme,  control,  and  judge 
of  its  ohligationfi.  If  in  this  latter  aeuno  it  is  to  be  deemed  a 
compact,it  must  bo  citlicr  because  it  cuntaius  on  its  face  stipul^-. 
tioDS  to  that  effect,  or  because  it  is  necessarily  impliwd  from 
nature  and  ohjcels  of  a  frame  of  government. 

I  352.  Tliere  is  nowhere  found  ujwn  tlio  face  of  the  CcHistitu- 
tton  any  clauss  intimating  it  to  bo  a  compact,  or  in  any  wise 
providing  for  its  interpretation  as  such.  On  the  contrary,  tJto 
pn^umble  cmphuticnlly  epcjiks  of  It  ss  a  solemn  ordinance  and 
ratablishmentof  gorcmmcDt.  The  language  is:  "We  the  pec^lo 
of  the  United  .Stiites  do  ordain  and  ettahihh  this  Cmittitution  for 
the  United  8taltis  of  America."  Tke  ptfpU  Ao  ordtain  and  e«- 
teAlUK,  not  contract  and  stipulate  with  e-aeh  ulher.'  The  people 
of  the  United  Statt»,  not  the  dii«tinct  people  of  a  partimlar  StaU 
with  the  people  of  the  other  States.  The  people  ordain  and  es- 
tabliidi  a  "constitution,"  not  a  ** co^federatifn."  Tlie  distinclioa 
between  a  constitution  and  a  cunfedcratiun  is  well  known  and 
nndcmtood.  The  latter,  or  at  least  a  pure  confederation,  is  a 
mere  treaty  or  league  bctwwn  independent  states,  and  binds  no 
longer  than  during  the  good  pleasure  of  each.'  It  rests  forerer 
in  articles  of  compact,  where  each  is  or  mar  ho  the  supreme 
judge  of  its  own  rights  and  daticii.     Tliu  former  is  a  permanent 

>  TIiowMd**'oTdtli)>nil  tAablUb " m  alM  bamd in Iha third  wtkUoT  tlwCeitiU- 
'totl««:  "TiMjmlioUlpytrvTMlwU  b«*«*t«d  tn«nt8«i|>niiiinC««rt,  and  la  mck  infe- 
rior courti  u  Um  Ceogmi  may  Cram  Uin«  to  tiiue  trtbun  and  aUMM.'    Htnr  U  tfcU 
to  b«  ikae  bjr  Congrow  t  PUslrbj'Bl*W|aadwheBOf4u*iBlmd«atobliifatd,b«u«k* 
Lnr  k  nmtTMt  «t  eomptet  betJcts  tbe  b^dUntn  aad  tlw  peofilc,  or  tha  conn,  or  IIm 
I  difftnnt  defanmonU  ot  tbt  Kavunatol  I    !<o.    It  1*  lukliiT  sen  Dor  Ion  ikak  •  kw, 
l|ud«  ti]rMiap«t«Qt  HUlliotity,  apo»*aaMrnt  or  i^jnitiBfpt  tt  tninil*.     In  MuUn  ■■. 
|Hnatar  (1  WUtL  R.  SOi,  3^1),  tha  Sn^mm  Comt'BiU.  "TIm  Cosrtitntion  of  Um 
ValUd  Stab*  wu  onlainad  and  atohlfalwd,  not  bjr  tiie  State*  ia  thdr  ■ovoRfgn  a*p<K«* 
tioi,  butprnjilutkallf,  aiUio  ptvuntilt  of  tha  OeoMllttiUDn  d«clUT«,  'bjr  tlia  people oT 
the  tJniled  Statca.'"    To  tbcMfneaOMt  btharMKinlnitof  .Mr.C|ii'(  JiuUw  Man^ll, 
iKd«UTiitrJ^Uuioiili>laiuortliPoa«rtls  H iKMIodi  r.  MairUnJ  (tlfWton.SH  M3 
to  M5,a])Mdyrit*.l) 

•  ThB  FedanlUI,  No.  0,  IS.  IT,  )8,$S  ;  W»b>ttr'«S|<w«hu.  tB30)  Dane'*  Arp.  |S, 
,  p.  II.  S  1*.  !>■  3fi.  «e. ;  Id.  (  10,  p.  21 1  Hi.  Hartia'*  Lctttr.  3  Elliat.  OS  ;  1  T^Kkci'a 
r  Black.  Omm.  App.  IM. 


CH.  III.] 


RATtJU  or  THE  COKSTITUTIOy. 


2SS 


form  of  goreromcDt,  irlterc  the  powers,  once  giren,  are  irrevoca- 
b)e,  and  cannot  be  rCKumcd  or  withdrawn  at  pleasure^  Whether 
formed  by  n  single  pcojiie,  or  by  different  Bociettcs  of  people,  in 
tlicir  political  cupiiuity,  a  coustilution,  thou^b  originatiug  in 
consoiit,  becomes  when  ratified  obli^tory,  an  a  ftmdamental 
ordinance  or  law.*  Tbc  constitution  of  a  coufcdfrutod  republic, 
that  is,  of  a  national  republic  fonncd  of  acvcrul  xtutos,  is,  or  at 
least  may  ho,  not  less  »a  irrevocable  form  of  goveruiuent  tban 
the  constitution  of  a  state  formed  and  ratified  by  the  a^^^vgato 
of  the  several  counties  of  the  state.* 

§  858.  If  it  had  Wen  the  desifpi  of  the  framers  of  the  Coiuti. 
tution,  or  of  the  people  who  ratified  it,  to  consider  it  a  mere  coa- 
federation,  resting  on  treaty  stipulations,  it  is  difficult  to  con- 
ceive that  the  appropriate  terms  should  not  have  been  fotmd  in 
it  The  Cnited  States  were  no  strangers  to  compacts  of  ibis 
nature."  They  had  sulisisted  to  a  limited  extent  before  the  Rev- 
olution. The  Articles  of  Confederation,  though  in  some  few 
respects  national,  were  mainly  of  a  pure  federative  character,  and 
were  treated  a»  stipnlationfl  between  Stat«-s  for  many  purpoiteB 
indcixnidcnt  and  sovereign.*  And  yet,  aa  haa  been  already  seen, 
it  was  deemed  a  political  hercay  to  maintain  that  under  it  anjr 
State  had  a  right  to  withdraw  from  it  at  pleasure  and  repeat 
its  operation ;  and  that  a  party  to  the  comjiact  had  a  right  to 
revoke  that  compact'  Tlie  only  places  where  tltc  terms  w^fed' 
trgtion  or  e^mpatt  are  found  in  tlio  Cnnatitution  apply  to  subjects 
of  an  entirely  different  nature,  and  manifestly  in  contradistinc- 
tion to  corutitution.  'Ilms,  in  the  tenth  section  of  the  first  article 
it  is  fk^arcd  tliat  '*no  State  shall  enter  into  any  treaty,  alliance, 

>  1  Wl!»ii'*LMtiim,4i;. 

*8MTh<!Fedn>list,Ko.9;  lii  Ifo.  IS,  IS  i  U.  S(^  SI  i  Id.  No.  89. 

*  N«w  EdkIumI  CmMmmcijF  of  14IS  )  3  Kmt'«  Comon.  Hit,  )«1,  I9t ;  Rawie  on 
OoftR.  IntnxiacL  pit.  M,  3S.  In  the  o(iliiun«o  of  ITST,  Tor  tlu  gnwrw— at  ef  tlw 
ttrrttaij  nonliwtst  of  the  Ohio,  aauia  trtkU*  «rm  upmnljr  d«dn«d !»  bo  "  mIIiIm 
of  eampatt  Mnta  Uw  ofitfintl  8utM(i. «.  lb*  Vailti  Stum},  *b4  Um  pMplo  and 
Sutw  (SiaiM  M  /Wurn  for  lume  wn  tfam  ia  bciDg)  ia  Uw  »M  UrrilMy."  Bat  to 
SWid  i^Mrt  *B)r  piofbic  diBboltf,  it  wu  deelued  tbtt  tlMM  lotiolci  ritouM  *' IbivTtr 
■miiis  ttnalunUa  okIoh  hf  tumman  onunU."    8a  tlwt,  lboii|^  a  eomptti,  ndthw 

.  fulj  na  «t  llbmy  to  wltlxlrkw  tnm  it  M  !U  |<I«miin,  or  lo  ttNcln  kwlf  from  tu 
OtUpdoM.  Wby  <irtaa«llk*CDnititatioaef  UietTnilailStataidMlindletoattlclai 
.  of  coniaiit,  U  Lliat  ww  tb«  intsntieo  of  tba  frunBn  I 

*  Tb*  F«Ur«lbt.  No.  IS,  13,  39,  40,  U  [  GtbboM  k  OgilM,  >  Wlitatoii'i  B.  1,  IST. 

*  Tb«  Ptdtnliit.  No.  SI ;  H.  Ho.  tS. 


254 


CONSTITDTIOK   OP  TUB  GKtTED  STATES.  [OOOK  lU. 


or  confederation ;"  "no  State  shall,  without  the  consent  of  Con- 
grem,  ice,  enter  into  anjr  sgrcement  nr  compact  with  another 
State,  or  with  a  foreign  power."  A^in,  id  the  sixth  article  it 
is  declared  that  "all  debts  contracted  and  engagements  entered 
into  before  the  adoption  of  this  Constitution  shall  be  as  valid 
against  tiie  United  States  under  this  CotuiitHtioH  as  under  the 
eo^federation,"  Again,  in  the  tenth  amendment  it  is  declared 
that  "the  powers  not  deUgated  by  the  Constitution,  nor  pro- 
hibited bv  it  to  the  States,  ore  reserred  to  the  States  respec- 
tively, or  to  the  people."  A  contract  can  in  no  just  sense  be 
called  a  delegation  of  powers. 
^L  %  3.'>4.  But  that  which  would  aocm  conehiiiive  on  the  subject^ 
^w  has  been  already  stated,  is  the  very  language  of  the  Cooiti- 
totion  itself,  declaring  it  to  be  a  supreme  fnndaniental  law,  and 
to  bo  of  judicial  obli|j;atiaa  and  recognition  in  the  administration 
of  justice.  "This  Constitution,"  says  the  sixth  article,  "and 
the  laws  of  the  Caited  States,  which  shall  l>o  teade  in  purHuancc 
thereof,  and  all  trusties  made  or  which  shall  be  made  under  the 
authority  of  the  Uoitod  States,  »hall  he  the  supreme  late  of  the 
land;  and  the  judgeM  in  every  Stat*  shall  bo  bound  thereby, 
antfthiait  in  the  ComtittUion  or  latet  of  any  State  to  the  contrary 
notwithstanding."  If  it  is  the  supreme  law,  how  can  the  people 
of  any  State,  either  by  any  fomi  u(  its  own  constitution  or  laws 
or  other  proceedings,  repeal  or  abrogate  or  suspend  it  ? 

§  855.  But  if  the  language  of  the  CtHistitulion  were  less  ex- 
plicit and  irresistible,  no  other  infcronoe  could  be  correctly  de- 
duocd  from  a  riew  of  tlte  luituro  and  objects  uf  the  instnmient. 
The  dwign  is  to  establish  a  form  of  goTommcnt  This,  of  itself, 
imports  legal  obligation,  permanence,  and  unoonlrotlability  by 
any  but  tlie  authorities  authorized  to  alter  or  abolish  it.  The 
object  was  to  secure  the  blessings  of  liberty  to  the  people  and  lu 
their  |>oslcrity.  The  avowed  intention  was  to  supersede  the  oM 
confederation,  and  substitute  in  its  place  a  new  form  of  go*-cm* 
ment.  We  have  seen  that  the  inofficicHcy  of  the  old  confedera- 
tion forced  the  States  to  surrender  the  league  then  existing,  and 
to  establish  a  national  Constitution. '    The  convention  also,  whicii 


>  TW  very  fini  tMolstioB  tdopUd  by  dia  <Mirt*don  (ilx  S-tntrv  la  two  SUM)  ma 
la  the  rqllviing  word*;  "It«*olval,  ^A  it  u  Um  afJiilon  oT  thli  conimittn  Ihiil  • 
natloual  ([nnrniliaU  Odglit  lo  Im  cattUUIwd  ot  >  tapimis  It^JUiiin,  judiuiair,  nil 
•mciitlv*-  (JonriMl  of  CoiiTtittlan.  pfn.  89,  ISt,  ItV,  M7  (  i  Miot'i  DttatM,  M, 


CB.  m.] 


HATURB  OP  THE  COKSTtTtmON. 


256 


frained  the  Constitution,  declared  tliM  Iti  tJio  Icttvr  40compa&f- 
ing  it  "It  is  obviously  impracticable  in  tho  federal  govem- 
lii«nt  of  these  States,"  says  tJiat  lettor,  "t«  st-vure  uH  ri|i;l)tso(l 
indepeDdcnt  sovereignty  to  eacti,  and  yet  provide  for  tho  interest ' 
and  safety  <^  alL  Inditiduals  entering  into  society  must  give 
up  a  share  of  liberty  to  pre«crve  the  rc«t."i  "In  all  our  delib- 
erations on  this  subject  wo  kept  steadily  in  our  view  lliut  which 
appeared  to  us  tlie  greatest  interest  of  every  true  American,  the 
eoruolidation  o/our  Union,  in  which  is  involved  our  prtisfierily, 
felicity,  safety,  perhaps  our  national  existence."  Could  this  be 
attained  cofl»i»tently  witli  the  notion  of  an  existing  treaty  or 
confederacy,  which  each  at  its  pleasure  was  at  liberty  to  dJa- 
solve  ?*{i) 

8m  ml<n  3  ritkin'i  Hutccy,  332) ;  [JubI]!  (bovtag  tluit  It  mu  a  iMtMOMl  gortnuMK^ 
mtt  •  Mni|iKt,  vtiich  tbt;  <rcM  abovt  to  catabliili,  —  >  ni|>niMa  b^ilativi^  jndidM;, 
and  exwntitc,  and  not  a  in*i«  tnaly  for  th*  mctcJm  ot  depandcBt  povrcti  dutliig  thft 
good  pltaum  or  all  ih«  nwUa«Ung  partir*. 

■  jmifnal  or  CoavHitioo,  pp.  WT,  3118. 

*  The  Ungw^  of  tlM  SnpPHM  Court  in  GUibona  v.  Ogita  (9  Vbtat.  R- 1,  IBT)  k 
Ttr;  cxpfsaalTa  «o  tkU  asbfcct 

"JU  jircUatlur;  to  ih«  T«n  aU*  fiaenaiioni  of  tbt  Cemritntten,  wtitch  vo  haro 
kond  tna  tint  W,  and  at  kavlng  io««  mftiicu«  an  it>  oHiatnielka,  Kfueno*  km 
lMa  nado  to  the  politlMl  lituatim  of  these  Sut«  nnl«tuff  to  ita  (onnatkn.    It  haa,, 
beta  aald  that  tliay  wcro  tortnign,  vera  compU'ld;  indtpaodMit,  aad  wen  cMiMcled , 
wltlt  writ  oQivt  oalj  lij  a  leagu*.    ThU  I>  Irac    But  wImii  iImm  alliod  »OTaitt|iUL 
MDTerttd  th«ir  loagoe  into  a  gortnuoeal,  irlicn  IbtJ  connrtMl  iLtir  CoiigraM  of  JLM- , 
lauador^  dqiul«cl  to  dcUb«nte  on  thai  coimnon  conctro*  and  («  Ttconunmd  mMMna, 
of  gnwnl  ntilitjr,  into  a  Ugiaktnic  impowcnd    to  tOiuit  Uw*  mi  Iha  laort  inUnatiBS , 
aefajatt^  tha  wtinln  ehmet(r  la  wUch  tlM  Statci  apfmr  nndtiwcttt  a  change,  tiM  ex-  \ 
lBiil«f  wUchmuat  bodttannlMd  by  a  ftif  es«uU«atian  of  tho  iBrtnnwnt  by  whick 
tkat  shaaga  waa  dTecltd.' 


(n)  NowWn  U  Uta  Indinolnbb  dnr- 
actnot  tlx  Foiml  CaiMi  own  lordUy 
praaanlad  than  ia  the  fblloaini;  pauaigM 
from  (ho  opjnioa  of  Cbier  Jaitteo  Cbmt, 
inTnxa)  v.  VUU,  7  WaU.  731:  "It  » 
■wdltp  to  dlaeiua  at  iMigth  th*  ^ucalioM 
whathar  itm  right  of  a  Stata  to  wltMnw 
tnm  tbr  Union  for  any  aaw«^  ngwiM  I>y 
hmttr  a*  RiiDdnit,  i*  cMMiatml  with  tba 
OoBaUluUnQ  of  tlw  (ToIImI  SlaKa. 

"  na  Union  uf  Uin  ijtaica  wai  nsrer  a 
pattly  utiAdal  and  aiUtrBry  million.  It 
hcfpn  among  ttw  oolanlt^  and  grew  oiot  ol 
eonaon  erisia,  tnubul  iyapaiht«»,  ktn- 
drad  ptindplMb  limtlar  Inlanati,  aod  gvo- 


gnptd«al  rtilationa.  It  ma  OHiAnnad  and 
ttTFui^icnrd  by  Iha  MMMittioa  it'wu, 
and  teceiTod  de6ait<  fom  Bad  ehaiacter 
and  aanetion  (tam  Uw  AHmIm  of  OMded- 
aratlon.  By  tkoM  llie  tTnion  ma  aolenuly 
dadarad  1«  ■  ba  pffiMtual,'  a»d  whan  tlMao 
artii'Ira  wfra  fonjad  to  ba  luaiWiwat*  to  Uw 
exignwia  of  tho  oouittty,  tha  ConMitiiiko 
waa  ordainod  *  to  farm  a  mora  pnfact 
Unio*.'  It  la  difflcdlt  to  tonttj  tbr  idoa 
of  indiaaolobla  nnlty  mora  cleaily  than  by 
tbtw  worfa.  H'Aot  am  la  i»ditioliMe, 
if  «  fnfOwU  mim.  wtadt  mtr*  ptrjtet, 

"  llot  the  pctpctnity  and  indiMotubiUty 


256 


COKSTtTITTlON  OP  TUB  UKITED  STATES.  [BOOB  lit. 


§  &56.  It  is  also  historicatly^  knowa  that  one  of  the  objecticMu 
taken  hy  the  oppon«iita  of  the  Constitation  was,  "  that  it  is  not  a 
confederation  of  the  States,  but  a  ffoivmmetU  of  indivirfualB."' 
It  wax,  nGv«rtJie1<!Sii,  in  the  Holci^n  iiuttrumentti  of  ratilication  by 
the  people  of  the  several  State's,  aasentod  to,  aa  a  Cotuititutimi. 
The  language  of  those  iostrumonts  uniform]}*  ia,  "We,  Ac,  do 

>  Th«  FnlsnJiit,  tfo.  U,  p.  247  ;  Id  Ko.  39,  |>.  250. 


or  tko  I'ttion  by  no  mMm  iiupli«a  the 
low  of  dutinct  and  Individud  oxutenoe, 
or  of  tha  ri^ht  of  Mlf  ■Ruvttmmcnt  t?  tlia 
SUt«a.  Unjer  tb«  ArtiulM  of  Co&fedtr- 
atioD  eacli  Sule  retniurtl  itii  nuVDni^iil]', 
liMdom,  and  iiidi.'priidciii;c,  auJ  Errrf 
power,  JiiriuIictioD,  uid  right  not  ex* 
pnatly  <ld(^ud  to  tb*  UiilUd  Stale*. 
Vadet  tlio  Cooititution,  though  tti*  pXT' 
«n  of  tho  StaUa  wtr«  mticb  TMtriotod, 
ttiU  all  powon  not  (t*l«eit4>d  I«  the  United 
Statta  nor  pnhibiled  to  the  Sutim,  an 
TCMrrcd  to  the  $tat«  n$pectivFl7  or  to 
the  people,  uid  «o  biTB  sbciidy  had  octm- 
■ion  to  nniRrk  at  thii  ttrm,  that  'the 
pvople  of  cruch  Stale  compo**  »  Sut*,  hav- 
ta){  it]  own  gorennwnt,  ajid  niiknred 
with  all  tho  functioDa  t«BMitiil  to  aepA- 
nit«  mid  iiiiUpcndaDt  oxiitcnoak'  and  that 
'nitlwut  th«Sla.ta«  la  antan  tharaooald 
ba  no  rack  political  bod^  at  tho  Uuitcd 
Sutn.'  County  <4  Lose  v.  The  State  of 
On^on,  mfn,  p.  7S- 

"  Not  only,  Ihoirfoni,  can  than  be  no 
loH  ot  aeparate  and  iDdnpeudtDl  aolonouijr 
to  (ho  8tala«v  thTOOKh  thcii  nuioii  under 
tha  ConatltDtkn,  but  it  may  be  not  nn- 
naaonably  laid  Uiat  tbf  pnapiratJon  of  tlia 
Statca  and  the  in«ial«iiajior  ol  Uwirgov* 
imniMti  an  a*  mndi  artthia  the  donga 
tad  cai«  of  (Im  C«4utitatlon  aa  the  piraa- 
amtlon  of  lb*  Unioii  and  iIm  nulnta- 
naoM  of  IhB  atliuiiat  gorvranionL  Tho 
ODiatitvtion,  in  all  lb  proriiiooa,  Looka 
ta  an  IwlaitnMtible  tTnlon  eompeMil  of 
ladtaUoetibU  Stuaa. 

•■  Wlim,  thanferv.  IVxaa  becanwone  of 
the  Unitod  Staloa,  the  snland  lata  an  in- 
dlaaotnblo  rotation :  all  the  obligation*  of 
pcepftt*]  lulOB  and  all  the  gnnotloa  of 
nfwbBcaii  gpranniient  la  tha  (7ldon  at 


onca  attached  to  the  Slat*.  The  aot  «hkl) 
connttDinatcil  htf  adtnlMon  into  the  Dnini 
n*  *onicthing  mon  tha*  a  cooipoet;  it  wat 
tlie  iDTOr|w>nlion  of  •  t>pir  nieniW  into 
tin  palitieal  body.  And  it  wa*  final.  The 
niriou  betwteu  Teini  and  the  other  Statn 
■ai  a*  complete,  aa  pcr]>rtiial,  and  an  India* 
aotuliio  a*  the  union  bvl»*«ii  tha  origlMl 
Slato.  There  »aa  no  phicc  for  nOMmict»> 
tioa  or  roroMtion.  sxcFpt  throng  nroln- 
tioa  or  throng  CMiMnt  of  tho  Statta. 

"  ConatdoMd,  IharaToi*,  a*  HanaaolloM 
nader  tha  ConitiluiiOD,  the  oidinano*  ef 
■ccoHioii,  adopted  hf  the  oovvcntion  and 
ntiitod  by  a  OK^ority  of  the  dtiieua  of 
T«za^  and  all  tk*  acta  «f  hn  L^Matma 
Intended  taf^reaOect  to  that  odinaDeiv 
wtR  tbaalatdy  nnll  Thtif  tr<M  ntlariy 
•ithaut  opcntioD  1«  Jiv.  Tha  obUggt- 
tioiit  of  the  tftato  aa  ■  membur  of  tha 
Union,  and  of  erery  dtiant  of  tho  State 
•a  a  citiiKn  of  tbc  Unlled  States,  ramaiiwd 
parfict  and  nninipalred.  It  Mtlainly  fol- 
lows that  the  BlHla  did  not  cew*  to  be  a 
State  nor  hor  «iliasna  to  be  cilinn*  of 
tho  r&ioa.  If  thii  wtra  otbtfwiae,  the 
Stat*  muat  have  Uooina  fortjfiD,  and  hn 
citinat  fofvigMn.  The  war  Ban*t  hare 
oeaitd  to  bo  *  war  ten  the  aapfonaiwi  of 
a  nballioo,  and  n>Mt  hara  beooaa  a  wu 
tot  ooncjneat  and  anliji^tlan. 

"  Oar  conclgtiok,  lliertfei*,  b,  tkat 
TisM  «anllnaHl  to  be  a  State,  and  a  Stale 
of  the  Union,  botirfthalaadinic  tha  traaa* 
Mlkot  10  tthtdl  w*  hl«*  nfeind,  and  thii 
ooMlnrfan,  laonr  jnilpnout,!*  not  laeoD- 
Oict  with  any  art  or  ilKlanlko  of  any  de- 
paitmint  of  the  ualional  gomwneni,  but 
entbfly  in  ocoonlanc*  with  the  whok 
(•Hm  of  (uch  acta  and  dnIantioM  •taoa 
tb(  Bnt  outbtaU  of  the  tvbelUon." 


CQ.  III.] 


NATURE  OP  TUB  CONSTITUTION. 


357 


oitent  to  and  ratify  the  said  Cotutitution."  *  The  forms  of  tlio 
convention  of  Massachosetta  and  Now  Hampabire  are  aomewhot 
pcculiur  in  their  lunj^ugo.  "Thf  convention,  Ac,  acknowledg- 
JQf;,  with  grateful  hearts,  the  Rouduosa  of  th»  Supreme  Buler  of 
the  imivcrac  in  affording  the  peuplu  of  Uic  United  States,  in  tho 
course  of  hia  providence,  an  opportunity,  delilicratvlj:  and  peacc- 
ahly,  without  force  or  surprise,  of  eutering  into  an  exjiiicit  and 
aolemn  cowptut  with  each  other,  by  avunting  Iq  and  rat^ymg 
a  new  ConsiitutitiHf  Ac,  do  assent  to  and  ratify  tho  said  Coq- 

uStitution."'  And  althoagh  many  declarations  of  riglits,  many 
propositions  of  amendments,  and  many  protestations  of  reserved 
powers  are  to  be  found  accompanying  the  ratifications  of  the  ro- 
rious  conventions,  sufliclently  evincive  of  the  extreme  caution 
and  jealousy  of  those  liodies,  and  of  tJie  people  at  lar^  it  is  re- 
markable that  there  is  nowhere  to  be  found  the  alig:bteBt  allusion 
the  instnunent  as  a  confedcmtiou  or  compact  of  Stab-s  in 
air  sovereif^  capacity,  and  no  ruscnatiun  of  any  right,  on  the 
part  of  any  State,  to  dissolve  it«  connection,  or  to  abrogate  its 
ent,  or  to  suspend  the  operations  of  tho  Constitution,  as  to 

'ItseU.  On  the  coutraiy,  that  of  Virginia,  which  speaks  must 
pointedly  to  the  topic,  merely  decUros  **  that  the  powers  granted 
under  the  Constitution,  hein^  derivfd  /rvm  the  peojAe  of  the 
United  States,  may  be  resumud  by  then  [nut  by  any  one  of  tlie 
States]  whenever  the  same  shall  be  penf«rt«d  to  their  injury  or 
l>pret>«iun."  * 

§  S-OT.  So  that  there  Is  very  strong  negative  testimony  against 
the  notion  of  it«  being  a  compact  or  confederation,  of  the  nature 
of  which  we  have  spoken,  founded  upon  the  known  liistor}*  of  the 
tinti'j),  and  tlie  ael^  of  ratificntion,  as  well  as  upon  the  antecedent 
Aj-ticles  of  Confederation.  The  latter  purported  on  their  face  to 
be  a  mere  confederacy.  The  language  of  the  third  article  was, 
"TTie  said  States  hereby  severally  enter  into  a  firm  leagtu  of 
frieiKbhip  with  each  other  for  their  common  defence,  kc,  bind- 
ing tlK'msclveii  to  ansist  each  other."  And  the  ratification  was 
by  delegates  of  the  State  legislatures,  who  solemnly  plighted  and 


1  SwUMfarnutiitbtJounuaiar  tlMCoai«ailoH,««.,  (181»,}i>p^  890  t«  405. 

*  JownuU  of  Ibr  ConvmUon,  &«.  <ISIf^)  pf>.  Wl,  tOS,  41S. 

*  JaarnabArtbaOearaitian.  li(i.,(lS19,)  ^  US.    Of  the  right  of  •  nwjoritjr  of  tb« 
ola  pcofA*  to  <hn9S  their  Coa*t)l«tian  nt  will  Ibcr*  it  no  donU.    Sm  I  Wiboa'* 

41S  :  1  Tneksr'a  BiMk.  Qoatm.  IBS. 
VOL.  I.  — 17 


258 


coNsrmmos  of  tbk  ukitbo  wtxTis.        [book  tn. 


engafrcd  tbo  /aUh  of  tht-ir  reBpective  constitnenta,  that  thej*  shoald 
abide  by  the  dctcrminutioa  of  the  United  States  tn  Cungip'eaB  as- 
ecmblvd  on  nil  qucstiutis  which,  by  tlio  BnJd  eoDtedi'raiion,  ore 
siibinUteil  to  tliom ;  nnd  tliat  tlio  articles  thereof  sbcald  be  invio- 
lably obsorved  by  the  States  they  reepectively  represented.  *  (a) 

$  858.  It  ift  not  unworthy  of  obsen,-ation,  tli»t  in  the  debates 
of  the  various  convf^ntinns  <»lled  to  examine  and  rntify  the  Coa- 
fttttution  thiH  mibjeot  did  not  pan  without  dixcuRsion.  The  op* 
ponenta,  on  many  otxaaionft,  prctMiod  the  objection  that  it  was  ft 
con»olidated  govcmm«^nt,  and  contraated  it  with  tli«  oonfiKlera- 
tion.*  None  of  its  adrocaten  pretended  to  deny  that  tt«  dtmign 
was  to  cotabliah  a  national  g(iremmi>nt  aa  contradiRtingaished 
from  a  mere  leapiio  or  treaty,  howcror  they  mif^ht  oppose  the  siig- 
gestious  that  it  waa  a  consolidation  ot  the  Statra.'  In  the  North 
Carolina  debates  one  of  the  members  laid  it  down  aa  a  funda- 
mental prineiple  of  et'cr^'  safe  and  frrc  government,  that  "a  rot- 
emment  is  a  compact  between  the  rulem  and  the  people."  This 
was  most  slrcnuonsly  denied  on  the  other  sEde  by  gentlemen  of  ^ 
great  eminence.  They  luitd,  ''A  coiniinct  oannut  be  annulled, 
but  by  the  consent  of  both  uarties.  ThcnTfons  uiilc«s  the  rulers 
are  guilty  of  oppression,  the  people,  on  the  prineiplcs  of  a  com-  ^ 
pact,  have  no  rigitt  to  new>modcl  their  government.  Tliis  is 
held  to  bo  the  principle  of  s<jme  monarohiul  guvemmcnta  in  i 
Euro|)C.  Our  government  is  founded  on  much  nobler  principles, 
llio  people  are  known  with  certainty  to  have  originated  it  tliem-- 
selves.  Those  in  power  are  their  sen-ants  and  agents.  And  the 
people,  without  their  consent,  may  ncw<model  the  goveniment 
whenever  they  think  proper,  not  merely  because  it  is  oppressively . 

>  Aniciat  of  CoofMitntiMi,  17S1,  »tU  13. 

*  I  do  not  ujr  that  A»  muuier  ot  iMiBg  tiie  «))j«rtion  wm  Jort,  bat  tha  tmet  *b<ni> 
djintly  kppian  in  thnprisUddrbkUa.  For  laMuMt  In  tlM  TbsMa  <Ubatu*,  (SDUoI'a 
Dull.  47,)  Ut.  Htnry  will,  "TiMt  ttib  U  a couMlldaUd  forvramMit  i«  ilamoiuAimUjr 
cU*r."  "  Tht  languagv  C<*J  '  Vr'c  tb*  (•ofK'  ImUwI  of  *  We,  i^  SUUa.'  ( Aoto  an 
the  clunKterulici  •»!  •onl  ofa  oear«(lar«tioo.  It  tbc  Slala  be  nol  liie  tgtmtM  of  Iliw 
oomiKct,  it  mart  tw  otM  grcal  conwltdated  Mtlanal  gi>T«niiuent  of  tke  feopUof  all  Ibo 
6UlE^"  TheUkDU|oic*tlaM«nlberamiJlanfliiu>plMMln  Hr.  KIllot'eDehatMfai 
Othm  Statta.  Sm  1  Kllint'*  DdIkIm.  91,  DS,  110.  Sot  alxo  3  Aimr.  MuamxD,  «3S  i 
3  Admt.  UuMUni,  iV).  it« ;  Mr.  Mattici't  t^Ut,  4  RUIaI'*  IbtutM,  ^  ». 

*  8  EUiot'a  Itcbatn,  lU.  3ST.  »1 :  The  Ftdtnluri.  Noc  3%  38,  $0,  It.  IS  ;  SAomt. 
UUMDin,  4S2,  4M. 


(af  Hw   natioMl  Tirw  el  (ke  Comti- 
tntiaa  u  fcrctbly  pmnnlad  l?  DnUu. 


U(t  MKl  WriUagi,  by  0.   U.   IWlMk 
100-107. 


en.  m.] 


natvrb  op  tbb  co»sTmnio!t. 


259 


exercised,  but  becMiso  thtty  think  another  form  will  be  more 
ctmducive  to  tiieir  welfare."'  ** 

§  SoO.  Nor  fihould  it  bo  omitted,  that  in  the  most  elaborate 
expoaitionn  of  the  Oonstitutiun  b^  lla  friends,  tt«  character,  as  a 
permancut  form  of  government,  as  a  ftiiidameutul  law,  as  a  su- 
preme rule,  which  no  State  was  at  liberty  to  disregard,  suspend, 
or  snnul,  waa  coustaiitl}'  admitted  and  iDxixtod  on,  as  one  of  the 
BtrunKi.-st  n-iiaona  why  it  ebould  bo  adopti-d  in  lieu  of  the  confed- 
eration.' It  is  matter  of  surprise,  therefore,  that  a  learned  com- 
mvntutor  nhould  huvo  admitt<^'d  the  ripht  of  any  State,  or  cA  the 
poupl«  of  liny  Kt»t4!,  witliuut  the  couiu'ut  of  the  rest,  to  secede 
from  the  Union  at  ila  own  pleasure.*  The  people  of  the  United 
StiiU-s  have  a  ri^ht  to  abolish  or  alter  the  Constitution  of  the 
Uniti.'d  .Stales;  bitt  tliat  the  people  of  a  single  State  ha^-u  such  A 
right  is  a  proposition  requiring  some  reasoning  beyond  tlie  sug- 
gestioii  that  it  ta  implied  in  the  princi|dos  on  which  our  pi)liti> 
cai  syntems  are  founded.*  It  seems,  indeed,  to  have  ita  origin 
in  the  notion  of  all  governments  being  founded  in  ettmpaet,  and 
therefore  liable  to  he  diaaolred  by  the  partie.t,  or  either  ot  them ; 
a  notion  which  it  has  been  oar  purpose  to  question,  at  least  in 
the  sense  to  whlnh  the  objection  applies. 

§  SCO.  To  iw  tbo  doctrine  of  Mr.  Dane  appears  far  better 
'founded,  that  "the  Constitution  of  the  United  States  is  not  a 
Oompoct  or  contract  agreed  to  by  two  or  more  parties,  to  be  con- 
stnied  by  each  for  ttaelf,  and  here  to  stop  for  the  want  of  a  com- 
mon ariiiter  to  revise  the  construction  of  each  party  or  State. 
But  that  it  ia,  as  the  people  have  named  and  called  it,  truly  a 
Constitution;  and  they  property  said,  *Wo,  the  people  of  the 
United  States,  d<f  ordain  and  establish  this  Coiistitutiou,'  and 
Dot  we,  the  people  of  eaeh  State."'    And  this  exptMitiiui  has 

■  Mr.  rredoll,  S  BlUcrt^  DaUin,  M.  « ;  H-  900^  Mr.  UcCtan,  td.  20 ;  Ut.  8pm- 
m.  Id.  M,  S7 :  14.  I».  Dm  klw  3  Elliot'*  D*l»i«),  IH.  8m  alv  Cfeb&«liii «.  Om^ 
SDalL  lis.  8c«t1taia  Ptan.  DabatM,  Mr.  Wtltoa'a  denitl  tlwl  Um OtnitltnUoB  «a* 
acomiwet;  t  Elliot'*  DaUtM,  986,  i$J.  8m  kl»  UcOnllodi  v.  Uujlami,  i  Whntoo, 
■IS,  404. 

*  Tbo  pMlaralbt,  No.  IS  I*  to,  30,  Mt  U  i  Nattli  Aaxr.  Rrrtow,  Octatw,  IStf, 

*  IU*|p  M  Uia  ConHtDtloa.  «lt.  S2,  |ip^  SW;  «e,  WT.  >IM^  MB. 

*  Dm»'i  App.  H  W,  «0.  pp.  <P,  71, 

*  Ur.  (iftprauiU  Mr.  Jottiae)  Wilnn.  wIm  wm  m  mtmha  at  tha  Men]  Omvmi- 
Um,  nan,  la  tha  PfUi^lnBla  llAato.  tb*  bHMrtnn  lU|i«Hp  i  "  Wa  wm*  Ulil,  Oc, 
IhM  Um  oMTantliOM  no  doubt  thoi^ltt  tha;  mr*  brmlsf  *  ernifoet  <r  ooninet  oC  lh» 


260 


COXSTITUTIOS   OF  TOE  UKITED  STATHB.  (^SOOK  ttl. 


beoa  Bustained  by  opinions  of  8oni«  of  our  most  eminent  states- 
men and  judges.'  It  vm  truly  remarked  b>-  tbe  FcderuUst,'  that 
tJie  Constitution  nas  the  result  neither  from  the  decision  of  a 
majority  of  the  |>eo[>le  of  the  Uuiun,  nor  from  that  of  a  majority 
of  the  States.  It  resulted  from  the  unanimous  asecut  of  the  sev- 
eral States  that  are  parties  to  it,  differing  no  otherwise  from 
their  onlinary  assent  than  its  being  expressed,  not  hy  the  legis- 
lative authority,  but  by  that  of  the  people  themselves. 

$  861.  Rut  if  the  Constitution  could,  in  the  sense  to  vhicb 
Te  have  alluded,  be  deemed  a  compact,  between  whom  is  it  to  bo 
deemed  a  compact?  We  have  already  seen  that  the  learned 
oommontator  on  Blackstone  deems  it  a  compact  with  several 
aspects;  and  first  between  the  StaU»,  (as  contradistinguislied 
from  ^G  people  of  the  ^tstcH,)  by  which  tlio  several  States  have 
bound  themselTes  to  each  other  and  to  the  Federal  government* 
The  Virginia  Resolutions  of  1798  assert  that  "Virginia  views 
tJio  powers  of  the  Federal  government  aa  resulting  from  the 
compact  to  mhieh  the  Stateg  are  partiet."  This  declaration  was, 
at  R>0  time,  mutter  of  much  debute  and  difforcuoo  of  opinion 
among  Ihu  ablest  rcprp»cntutivoa  in  the  Lcfrisluture.  But  when 
it  was  sobsequeutly  expounded  by  Ur.  Madison,  in  the  celebrated 


fnateat  iwpatUoot^  It  »h  m»ttt<r  oT  iorjMiM  to  K«  Uh  gnat  Inding  ptindpJM  Ot 
UiB  ty^trau  ilill  to  my  mach  miiuiiilFntood.  I  miUMt  nunn't  (or  "tut  amy  Mwbta 
thought,  but  1  bilif  <re  It  «iQQoC  br  Mid  thcf  thou^t  thtj  ■Ktrt  makiic  «  Mntnet, 
bccMiw  I  cuinM  duworer  the  kul  trww  of  a  otanfact  is  that  (jxtna.  nW«  ooa  U  M 
tompad,  mbmOUrtart  trurrt parluj Uuunmt.  It  !■  ■  Bnr doctrin*, tfcit «•* on  Mtlia • 
oomfiMt  witbhiniBttlf-  'ThacuTivviitiun  wnforKingcMitnotal'  Withwhrait  Ikiraw 
no  bwgun*  that  wure  Uii>i«  luadc,  1  ua  luitUe  to  mmwir*  who  tb«  putie*  oonld  be. 
Thi!  Sut*  liortnimcDU  maVt  a  batsiJa  with  owk  Mht*.  That  b  tbc  doctrlks  Aat  la 
■udMniKil  to  bv  mtabllihnl  by  i^DllonMD  la  Ui«  ofipodllan  ;  iMr  Stat*  tonMlpliM 
wuh  to  be  niirewDtnl.  Bnt  far  othwr  «en  the  Utaa  of  t\:r  convMition.  TJUt  it  Mt  s 
jtvmwnt  foundtd  vpon  eompad.  H  itfvimitd  ufvm  tkt  fomtr  ^  tkt  pa^U.  They  ex- 
[XOM  in  their  lumc  and  their  otithoritf ,  <rv,  tho  peopla,  do  ordain  uid  ortablJJii,*'  ke.  3 
iniiot*  Debatca,  £80, SS7.  HcaJdi,  (I<t.XM,)  "71it«*;it«n  b  nut  aaamjiact ormn- 
XrnfX,  Th»  iTaltiD  IslU  you  what  It  b  ;  it  b  an  «i4liianc«  iiid  o*lahlUbni«il  of  tlio 
)X«|i1«."    9  DaM'aAbddg.oh.l87,*n.  ^0i|15,P^SM.  WO;  Daao'a  Ap^  (10,  p.  SI, 

>  Sw  Wan  t.  Hylton.  3  D.H.  1»  ;  Oibhotm  t.  Omritb.  8  TML  «t9 ;  1  Elliot  >  Dc 
batea,  T3  ;  S  Klliot'i  Oehnta.  il :  WotaMr**  Spacehai,  p.  110 ;  The  Fodomltn.  Soi.  8^ 
SS.  39  1  S  Amor.  Hnseun,  !M,  ttt ;  Vlr|[inia  DebmU*.  b  17H,  en  tha  Alion  Lavi^ 
I>p.  Ill,  138,  133,  IM;  Nortlt  Amcfieaa  Beiiav,  OcUbM,  ISaiMip.  M7,  Ut. 

•  No.  89.- 

•  1  TuiPk.  Bladi.  Cama.  1«9 ;  Bajnta'a  SpoMli  In  Uw  8aDat^  te  1880 ;  4  BUM'* 
DehatM,  StS,  Sie. 


CH.  m.] 


NATURE  OP  TOB  CONSnTDTION. 


261 


R«por4  of  Jnnuary,  1800,  after  admitting  that  tho  term  "states" 
U  used  in  different  scnac*,  and  among  others  that  It  somotimcs 
nieaiw  t]\«  people  composing  a  political  society  in  their  highest 
sovereign  capacity,  ho  considers  the  resolution  imobjectionablc, 
at  tenst  in  this  \a»t  sense,  because  in  that  sense  the  Constitution 
was  submitted  to  tlio  "  States ; "  in  that  acpiie  tho  "  States  "  rati- 
fied it;  and  in  that  sense  the  States  are  cnnse((nently  iraities  to 
the  compact  from  vhich  the  powers  of  the  Federal  government 
result.*  And  that  ia  the  sense  in  which  be  considers  the  Statee 
parties  in  his  later  and  more  deliberate  examinations.' (a) 

5  862.  This  view  of  tho  subject  ia,  however,  wholly  at  vari- 
ance with  that  on  which  we  are  commenting;  and  which,  hai-ing 
no  foundation  in  tho  words  of  the  Constitution,  is  altofruther  a 
gratuitous  assnroption,  and  therefore  inadtni»)ible,  Jt  is  no 
more  true  that  s  Stat«  ia  a  party  to  tho  Constitotioh,  oa  such, 
bccatiso  it  van  franii-d  by  delegates  chosen  by  the  >Jtates,  and 
submitted  by  the  K-gisliUtirejt  thereof  to  the  people  of  tho  States 
for  ratification,  and  that  the  States  are  necessary  agents  to  give 
effect  to  some  of  its  provisions,  than  thnt  for  the  same  rcMOOs 
tho  governor  or  Senate  or  Hoiisp  of  Reprfwentatives  or  judges, 
cither  of  a  State  or  tho  United  States,  are  parties  thereto.  No 
State,  as  such,  that  is,  the  body  politic,  an  it  was  actnally  onnin- 
iud,  had  any  power  to  enter  into  a  contract  for  the  establislimcnt 
of  any  new  government  over  the  people  thereof,  or  to  delegate 
the  powers  of  government  in  whole  or  in  part  to  any  other  sover- 
eignty. The  State  governments  were  framed  by  the  people  to 
administer  the  State  constitutions,  such  as  they  were,  and  not  to 
transfer  the  administration  thereof  to  any  other  persons  or  sov- 
ereignty. They  bad  no  authority  to  enter  into  any  compact  or 
contract  for  such  a  purpose.  It  ia  nowhere  given  or  implied  in 
the  State  conHtitutions ;  and  consequently,  if  aetually  entered 
into,  (aa  it  was  not,)  would  have  had  no  obligatory  force  The 
people,  and  the  people  only,  in  their  original  sovereign  capacity, 
had  a  right  to  change  their  form  of  government,  to  enter  into  a 
compact,  and  to  transfer  any  sovereigntj-  to  the  national  govem- 
n)eDL*{/>)    And  the  States  never,  in  fact,  did  in  their  political 

■  BcMtntkn*  oT  1900,  pji.  S.  C 

*  Kotih  Aneriou  Bdriew.  Oct.  1830,  pp.  U7.  Mt.  •  4  Whmbim,  tOi. 


(fl)  Writlnfi  of  MklboB,  IV.  M,  S9S. 


cnM*d  by  th*  pMfla  aad  boUIng  fran 
ihm  Mtttb  MtgkUd  pomn  b  (nut. 


262 


coxsnrtTnoit  op  thb  dniisd  nATEs.         [book  m. 


capaeitjr,  as  cootradistiDguinhed  fma  the  people  thereof,  ratify 
Uio  Cutuititutfon.  They  were  nut  vailed  upou  to  do  it  by  Coa- 
i^M,  and  were  not  contemplated  a»  iiMentlal  to  give  validity 
toiL> 

■  The  Foltnlut.  No>  St.  In  ocoflnutloD  of  tH»  *(r«,  «a  B>r  quote  tlw  nuottlag 
of  llta  SapNtM  Court  in  the  cue  of  McCanocb  r.  Maryliod,  ((  Wli(atoa'>K3ie,)  U 
Niiiwnr  to  the  nry  ugonwit.  ' '  The  powen  of  t&i>  gianl  gDremntent,  it  bM  W* 
Mid.  M*  dib^tol  lir  tiM  SutM,  wbo  kloue  nn  tntlf  laremgn,  and  uuut  be  eloKMd 
itt  aubordliulion  to  th*  States  wlw  »1od«  immbm  Jiuprienie  dominion. 

"It  ooulil  Iw  difficult  to  n»t>ia  thb  pn^Mltlan.  Tit  coiinatloii  iriilcit  fNimd  th« 
ConatitutioN  WM  indMd  dMted  bf  tlw  Stste  logisUtuni.  But  Ik*  inidniMH,  wh«a 
U  amt  from  thttr  h*nl|l^  wu  n  ■»!•  pnipoo^  withonl  obU^itiaa  or  fntenanMu  to  iL 
It  WM  npoitnl  to  th*  tliNt  nUting  Coiig7<v  a(  the  Uiiit«d  8t«tM  with  ■  miuort  thtt 
K  might  b«  (ubniitted  to  » (nnventim  of  iM(f*t<Ht  clw**>>  fa  •■■'h  Si^to  t^  tho  pM|J* 


wbiob  llMy  alONurd  lin  th«  SUlet  arrvt^ 
all;,  M  io«uibcn  of  >  coafodency,  bad  no 
nuthoritjr  undor  their  tlr1r)(Hlion  la  wt 
Mill*  111*  o«ill(d<tmtioii,  imrugureto  ■  rer> 
olutton,  uA  Instjtut*  a  new  and  mora 
*n«Ke1iD  gvnraawiit  by  wLlch  tiio  fttata* 
tli«7  npcnento^  at  ^(raciM  w*aU  b« 
•bom  of  aunj  noM  Impoitant  ponnv 
and  mtilKtwl,  l*gitl>*r  villi  thrir  feople, 
to  nuiF  ntualnt*  aukkon  Wfcr*.  B«t>- 
olntiona  unlit  oilyinaU  wUli,  *tid  fca  tt- 
IkImI  bj,  tbc  people  ;  rxiitiug  govtre- 
IMata  bam  only  to  «on£na  ibtsnolvn  to 
a  (hllhhl  enoulion  of  Ihr  Ituata  rooSdMl 
to  UiMu  i  awl  if  tb*  janoM  in  *«t)ia«tj 
gi  hvjonA  tki*  Uuut  and  tnk*  itcia  to  Hi 
add*  tba  lutnimanl  of  gomiiMiUt  und«r 
*li(ek  alon*  thajr  h*T*  tba  right  to  ivpre- 
•Mttho ptqpb^  tbermayjnaiirytlidrto*- 
duet,  ptfliap^  ■■  indiiiluiK  If  ivTitlnl^ 
ahalt  fca  acronqdithtd  ami  |irov*  faanaltcial  i 
bui  It  k«  an  abuM  of  Utmt  to  *pi«k  U 
thoir  act  ■«  that  of  tb*  gnnanax*!  of 
which  (bay  wvm  nmiliti^  «hc«  in  truth 
it  ia  aonirthing  *o  Ur  ban  bting  cwtan- 
platfd  by,  ihx  II  UaetuaDy  r>t«pMBt  le^ 
tb«  dtlaptioa  of  authority,  and  ibtnfer^ 
IndMd  of  haikg  wilbja  lb*  tnMt  mm. 
fmvd.  la  nirnMiOy  nbritair*  «(  ^ 

llr.  BnohwMa  ^iptan  t*  hava  kllm 

into  thii  •cmr  whan  ha  aMuaad,  (n  ISM, 

Ihat  to  |art  fcnh  Iba  pown  of  lb*  p>T(fa. 

■Mt  te  nlalw  lb*  hm^  anaiab,  and  alW 

,  inifartj'  ol  tb*  Vniui  Stttan,  and  to  an- 


foKo  the  pwrfonnana*  of  UJUiwial  dutkt 
witbui  «ae  of  Uw  Stataa,  th«  ncanhara  of 
whota  Icg^atire  and  eieivtirc  dcfart* 
■nmta  had  bj  ronnal  acta  and  dattatallCM 
anDOUMwd  lla  «ilhdia«al  tnm  tha  Uaioih 
WMdd  bo  to  wima  wari^diat  neb  Sntai 
8aa  ku  nuaa^  of  DcotBbar  4, 1880,  uid 
hi*  «x|>Uaatinn  thnaof  in  his  aocooat «( 
hi*  adninbttatioM,  uh.  t. 

Tb*  pow«*  "to  ooaroa  a  Stata"  wai 
that  wblcdi  Mr.  Bucbaaak  «aa  aolkitoa* 
not  to  tecugttiie.  "Sot  (or  all  tb*  land  of 
the  mntiMntcf  North  America  would  I 
agr**  that  tba  Fadctal  canmnmit  bad 
l»wnlaaaaeM*8Ml*b"aaid  Hr.  Sanaur 
JsOataoB  Dart*,  in  addrwihig  hi*  otautitn- 
enia  nt  MMwipfa  ««  the  adndMoa  of 
KauM*.  To  tUi  OonfiMT  Vfa*  of  Tlr- 
(lui*  ivplM:  "Thi*  Nraly  ounot  U 
MMUt  in  BB  ahnlnto  mam,  elthtr  that  a 
Stale  caniiDt  be  ooaned,  or  that  la  aoin* 
ct«a  *b«  ounbt  not  to  h»  co*nnL  If  a*, 
aniacanba  put  in  which  I  jaiwiiiii  iiiiij 
patriot  ovght  to  be  willing  to  gin  the 
price  of  all  tbawwda  h»^al  tba  ooMi- 
Mtwt,  if  aawwwy.  to  cowoa  bat."  Oc,  m 
tba  ooMlast  abowa  hit  maalng  to  h^  to 
coMpd  lb*  pMaeot  in  awUiDrity,  a*  wall 
aa  iha  f«ph  «(  the  State  n  fCMtuI,  t* 
anboittOMich  lawaof  Ooofnaaait  baling 
bar—'*  topwanaaiMorthaConatitU' 
tla^han  baaomaflU  twy»— ■h^flT'** 

tawL  trial  iiiiTMillaiM  fl iimiI  imI 

thaAdaiMm*fSw^pi.loa.    C 


OH.  m.] 


NATDBB  OP  TBS  C0K3T1TOTI<H>. 


888 


§  363.  The  doctriae,  Uien,  thnt  the  Htalcs  aro  jiarties  Is  a 
grutuituiu  uMumptiou.  In  tiie  language  of  a  most  (liHtiDKuislied 
ftUtvtiiuuii,'(<i)  "the  CoQstJtutioQ  itoeLf  in  ita  vcrj*  Irout  refutes 


tlirrunr,  andrr  tho  ni«imiiicndntii]n  of  tt*  leguI*l«R^  Gtf  thiat  laMit  ami  ntUcatlaai 
Tltlx  iiioilv  of  pnxMi'iiinK  wu  adopUiil ;  «nd  bjr  Ac  ecavutlea,  Iqp  CODgriM,  toA  hj  tha 
HUM  IrgUlntiiiii*,  tbii  bi»tnim«uC  «*»  uibmliW  (o  Uw  paofh-  Thrj  *rtMl  upon  it  in 
UmohI}'  iiianiiM  in  wlilcL  thrf  csu  »cl  sttolj,  «ir«clitely,aBd  aiaclj-,  oia  nich  tntjtett 
bjr  aucmUing  in  coDVPiiIiou.  It  U  tnw,  thejr  uMmUnl  in  tbdi  KVanl  fttaUa,  — and 
where  clw  dioiilJ  tliejr  hive  auomblnl  I  Ko  polilicnl  4rraincr  wa*  fT«r  wild  eiioagh  (0 
think  o/  tiTMklnK  iloim  Uid  llnoi  which  acpsmta  tha  Klateit,  &nd  of  rampouiidiiig  ths 
AmaricaB  jwuiilo  iub>  miv  oomniuii  tiiaw.  Uf  cuiiH»|iii<iice,  wticn  Ibry  act,  (br;  act  in 
Uuir  &ta.taa.  Bat  Dm  tnaaanrM  liiry  nduiit  do  not,  on  that  Mcouni,  ccue  to  W  the 
moaMKaof  (he  paopl«  thnudTM,  ot  boconiv  tho  inauurwtof  lliu  tttalti  govmmt*it». 

"  PtQin  then  coiiTcntioiii  Iha  OotMtitution  di*riT«a  ft*  whole  autliuritjr.  Tfa*  govmu 
mmil  {iraowdii  lUnutly  trma  tha  ptoptc ;  It  '  oTdiioed  and  Mtabliikcd '  in  the  nauM  «f 
tha  pcoiite ;  aud  la  (declared  to  lie  onUincil,  *  in  OTtJcnr  ta  htn  «  mare  perfect  tluon, 
fatiHiah  jnalio*,  iniure  doniMtic  tranijuillity,  am)  Nieui*  tha  blcaiingi  of  Ubarty  M 
thamwlm  anil  tothiirpnaturlly.'  TlieuKnt  oftheSlatea,  la  their  WT«t*ipioap«citTi 
I*  ItnplUd  lo  <*I1iag  a  ooiiT«iiIiuii,  nnj  tbui  lubmitting  tliat  [lUtniiiiBDt  to  the  people. 
Bnl  the  paopk  were  at  jierfrvt  Ubcrt;  to  ac«^  or  i^nt  it,  and  thelract  wu  finaL  tt 
nfaired  not  the  afflrmuicc,  and  roiitd  nnt  bn  mffMfti  hj  tho  Statu  gartrmuina, 
Hm  Coiitlinitioii,  whi^D  tho*  adoptod,  wm  of  tomplat*  oUifaticoi,  and  boa«d  tba  8uU 

*'  It  ha»  been  aaid  thnt  the  people  hid  already  rairendwed  all  Ihelf  powert  to  Uw 
Slat*  wnrelipiti.-i,  and  hwl  nr.lhinK  inur"  to  xird.     Bot,  Hardy,  the  ^UMlloo  wbMlicr  J 
t^  Bay  tiwunie  (ii'l  mo'tiry  Uic  powi'nt  gnni'sl  U> iin*«mini<Dl d«w  not  ImmIb  M  b4^ 
MttUd  ia  thii  wuatry.    Much  mon:  migiit  the  Irgitiinai-y  of  tha  pmfl  gormtmn/tA 
ha  dMbled,  had  it  beon  cnatod  hy  the  Sulo*.     The  powen  ddegatol  lo  the  9laU  ' 
wnrdjpttia  war*  to  ba  asarclaad  by  themwjnga,  not  bjr  *  dii^net  and  bdep«nikaA 
aonndgnty  ttaaUd  by  themaehva.  To  th*  formatiaa  •(  •  l«^B*v  *nch  ai  waa  tba  mo*  I 
Mmtko,  tha  Stata  aoraraignUaaware  orrtainlj  oavyatsnl.    But  whan,  'In  order  tti 
form  a  nwta  ptiieat  mlon,'  it  m  daoMd  nioaiiy  t*  cbai^  lUa  aUiaoca  bato  i 
tSccliTa  cevwmMdt,  yiwiiilnit  |7«M  and  tovoreifn  powtai^  anil  acting  diractty  on  A* 
ftfU,  tha  nawmlty  of  rvr«rrln«  it  to  tbe  ptnpla,  and  of  dctiTtng  ita  powen  dirwtly 
ftan  thorn,  wai  Celt  and  acknowlodged  by  alL 

"The  ganranwnt  of  the  Cnkm.  Ib«ii,  (whaUnr  mqr  be  the  inllitinta  ot  ihU  bd 
on  lh«  caxv)  b  emphatically  and  tnily  a  govemiiient  of  the  peoiilp.     In  fonu  and  ■nb> 
tfMw*  U  MMMtaa  Avm  thMM.    iHpMNcaangnuitad  bythem,  and  are  tobaamclipdi 
dlnctly  «■  tham  and  for  iMr  hmOL 

"llda  g»nmnient  i*  a(kiwwleds»d  by  all  Isba  oaa  ot  rninniaralad  [lowan.    Tlw 
friawpta  that  it  mn  smeiM  amly  tba  ponnan  gimtad  to  it  waoUl  acoai  too  apfMcnt  t»  • 
ha^  n^nind  to  ba  eafbtctd  bf  ill  thaaa  wfOMtati  whidi  Ua  anlightenad  frianih,  wbita  j 
It  wa*  d«p«idh)g  brfor*  tba  (Mpb,  (oDttd  It  nirt— ry  ta  mge.   Tbat  piindpla  b  Botf  | 
niTinally  adwUtad.    But  the  luaatlon  napKttng  tha  asnanl  ot  (h*  powan  aetoallf 
gmtad  U  pnpataally  ahiing.  and  will  probably  omtiana  to  aria*  aa  long  aaonr  tjf 
t«M  ahaU  axlrt." 

)  WcUur-i  SpmkMk  lUO,  p.  tSi  1  4  ElUot'i  DtUtea,  SiU. 


(a}  S  WctMtec'a  Worka.  SM.     See  ab»  Id.  ttO  H  mt. 


264 


CONSTITUTION  OP  IBB  DStTED  BTATES.  [iWOK  III. 


that  It  declares  that  it  ia  ordained  and  established  by  tie 
PEOPLB  <if  the  Uniud  StaUt.  8o  far  from  aaying  that  it  ia 
cstablUhed  by  thu  governments  <d  the  several  States,  it  does  not 
(;\X'n  say  that  it  is  established  6y  the  people  of  the  several  iStaU*. 
Bat  it  prooouaccs  that  it  is  established  by  the  people  of  the 
United  States  in  Uie  aggre^te.  Doubtless  the  people  of  the 
several  8tAt«a,  taken  collectively,  constitato  the  people  of  the 
United  States.  But  it  is  in  this  their  collective  capacity,  it  is 
as  all  the  people  of  the  United  States,  that  they  establish  the 
Constitution."' 

3  864.  But  if  it  were  admitted  that  the  Constitution  is  a  com- 
pact between  the  States,  "the  inferenees  deduced  from  it,"  as 
has  been  justly  observed  by  the  same  statesman,^  "  uro  warranted 
by  no  just  reason.  Beesuse,  if  the  Constitution  be  a  compact 
between  the  States,  still  that  Constitution  or  that  compact  has 
established  a  goremment  u-ith  certain  powers ;  and  whether  it  be 
one  of  UiDse  powers,  that  it  shall  construe  and  iut<.'rpr«t  lor  itself 
the  terms  of  the  compact  in  doubtful  cases,  can  only  bo  decided 
by  looking  to  the  compaet,  and  inquiring  what  provisions  it  con- 
tains on  Uiat  point.  Wilhout  any  incoasistcnuy  with  natural 
reason,  the  government  even  thns  created  mi^ht  be  trusted  with 
this  power  of  conatruetion.  Tlio  extent  of  its  powi-ra  must, 
therefore,  bo  sought  in  the  inatniraent  itself."  "If  the  Consti- 
tution were  the  mere  creation  of  the  State  goromments,  it  might 
he  modified,  interpreted,  or  coiiHtroed  according  to  their  pleas- 
ure. But  even  in  that  case  it  would  bo  necessary  that  they  should 
agree.  One  alone  could  not  interpret  it  exclusirely.  One  alone 
could  not  construe  it.  Ono  alune  could  not  modify  it."  "If  all 
the  States  are  parties  to  it,  ono  alone  can  havo  no  right  to  0x_ 
upoti  it  her  own  peculiar  construction."'  { 

1  Mr.  D*o«  nMocu  l»  tb*  nnw  tAd,  t1i«a^  It  b  oMom  tlul  he  omU  not  at  tlw 
tiau  Imt*  bad  taj  kuowMge  «f  tlw  vimn  of  Ur.  W«birt«r.  »  Duw'n  AMdit.  A.  JSB, 
,ait.90,  flfi.  pp.M»;aX};  DmftApf.  40^41,41.  Batddi,  "Ha  oonlnd,  «btn 
■ad  h>>w  did  tho  Unioa  tewaptrty  toltt  If  «oeniiMt,«hf  t*  It  nerrr  >o  il«noan. 
IbUkI,  bat  often  anil  InnutaU;  In  the  iBatraiwnl  ItMJC  and  in  ita  ■mmdmi-iiti.  ilyled 
'Mt  ConatltDtkn '  r  and  U  a  cootnct,  wli]r  did  tlie  franwn  and  ftofie  «all  it  tlic 
ni|awM  U«  T  S  Dutf's  Abridg.  MO.  Im  Hartin  9.  ftantar.  (I  Wkat.  R.  SO*.  iH,\ 
tha  SupROie  Coun  vspmalj  daoland  that  *lk*  OoMtltntlM  wu  onlabnl  and  «atalh 
lUiad.'  not  hf  the  State*  In  their  tomnif^  otfaidtj,  bat  Mn|iWiMll7.  ■•  tha  fawmUs 
«r  the  Comititution  dadaiw^  ■  b;  Um  paopU  «f  lbs  United  Staha.*" 

•  Wetetar'a  Speachoa.  420  ;  4  Elllnt'*  nebatM.  »4. 

*  EtvD  ander  tha  toaMaratloD.  vhhh  ma  toafaiaadly  in  mmj  napecta  a  m*n 


CH.  III.] 


(JATUBB  or  THE  COXSTIIVTION. 


$  8<U).  Then  U  it  &  compact  between  the  people  of  the  B«v«ra1 
Stated,  each  contracting  with  all  the  people  of  the  other  States  ?  ^ 
It  may  be  admitted,  na  wmi  the  early  exjKtaition  of  its  advocates, 
"that  the  Constitutiott  is  foundud  on  the  afiaent  and  ratification 
of  the  people  uf  America,  given  bj-  di-putics  elected  for  the  spe- 
cial purpose ;  but  that  this  luiscnt  luid  ratification  is  to  be  ^ven 
by  the  whole  people,  not  as  iiidividuaU  composing  one  entire 
nation,  but  ax  eoui)>o8iiitf  the  di^tiuct  a»d  iudependctit  States,  to 
which  thcjr  rexgwctirely  belong.  It  is  to  be  the  nssent  and  ratiS- 
cation  of  th«  «evernl  Htate^.  derived  from  the  supreme  uuthurity 
in  each  State,  tlie  authority  of  the  people  themselves.  The  act, 
therefore,  cstablislnng  the  Constitution,  will  not  be  [is  not  to 
be]  a  notional,  but  a  federal  act"*  "It  may  also  be  admitted," 
in  the  language  of  one  of  its  most  enlightened  commentators, 
that  "  it  woa  formod,  not  by  the  governments  of  the  component 
States,  aa  the  Federal  go^'emmcnt,  for  which  it  was  subittituted, 
VftS  formed.  Nor  was  it  formed  by  a  majority  of  the  people  of 
the  United  States,  as  a  single  commnnity,  in  the  manner  of  a 
conaolidated  government  It  wan  formed  by  the  States,  that  is, 
by  the  people  in  each  of  the  States,  acting  in  their  highest  sov- 
ereign capacity ;  and  formed  consequently  by  the  same  authority 
which  formed  the  State  constitutions."^  But  this  would  not 
necessarily  draw  after  it  the  conclusion  that  it  was  to  be  «leemed 
ft  oompact,  (in  the  sense  to  which  we  have  so  often  alluded,)  by 
which  each  Stat«  was  still,  after  the  ratification,  to  act  upon  it> 
as  a  Ic^iic  or  treaty,  and  to  withdraw  from  it  at  pleaAurc.  A 
gOTemmcnt  may  originate  in  the  voluntary  compact  or  asficnt  of 

Ingot  or  ttwtf.  tbaugb  in  oUin  Ksperts  ntUiHMl,  Ooagrm  VMUriaiontly  raMtmd  th*l 
it  WM  DotnitUn  the  oompetmcy  of  my  Slate  to  fm  acta  tot  li>t«r|<miiig,  rx|<Uii!u^ 
or  eoMtrniiif  *  aatioiul  ttMtjr,  or  wty  part  or  (Imu>  of  tt  Vet  Id  tint  lualnuDBnt 
lbM«*Mn4t<xtirMiJi*ileUI]>MrorglT«Q  totk«|iCDin«]gaf(niiMiit  tocoMtrneiL  It 
ma,  hometa,  ilmnad  an  in-«ibtible  Mid  «»]iutn  ntbotUr  fa  tlu  (Mini  fntammit, 
(rantlMvccyiwtiiTCor  thr  othn  powcm  gfnn  tq  th«a ;  tnd  MprtUly  fran  lb«  pomf 
to  dmIm  mr  uul  pMce,  uid  to  farm  tn>ti«s.  Joofiwb  of  Caiig;t«ia,  Apil  Iti,  1787, 
pp.  n,  Ac  ;  Rawb  on  CoMt.  A{ip.  %  pp.  31A,  830. 

I  la  lb*  r«Ml«UoM  patoocl  ij  tha  Senate  ef  Scnttb  CwolUw,  b  Dtembrr,  ISn,  !t 
«M  d«cl>»d  that  "  ibe  OaiutitBlioa  of  th«  t^nltad  Stat**  it  ■  compoct  MvMn  tbe 
p«ofle  at  the  djflbrcnt  StalM  witli  each  other,  u  eifviato  asd  iodeptodent  MTmign* 
Hm."  Mr.  Oiimkf  filed  a  protnt  foandtdoQ  diSermt  rkwi  of  H.  floe  OrinLk^'*  Ad- 
4rMi  a»d  BcMlntioD*  In  1338,  (edidaix  jfnt,  at  Chnlatoa,)  vfan*  hi*  axpttritlea  «l 
tba  nmMftuUon  b  gi*m  at  krB*>  '^  maintained  In  a  t«tr  abk  ipaith. 

*  The  Fcdrrttbt,  Kn.  3d ;  w«  Stntfb  «.  CrawnbikleU,  I  "VFbMt.  R.  193. 199. 

•  Ut.  MndUoa't  Letter  la  Karth  Amerfaan  Bericv,  October,  1880,  pp^  687,  S88L 


CDNmrtmoN  or  tsb  unitbd  states.        [booe  m. 

the  people  of  several  States,  or  of  a  people  never  before  united, 
and  yet  when  adopted  and  ratified  hy  tbcm  be  no  longer  »  nutter 
rcstinR  in  compact,  but  bcciunc  an  osonitwl  Kovcmmcnt  or  con- 
stitution, a  fundunontal  law,  and  not  a  mere  IcuK^c.  But  tfao 
difficulty  in  asticrting  it  to  be  a  compact  between  the  people  of 
cftob  .Stat«  and  all  the  people  of  the  other  States  is,  that  tlie  Con- 
stitution iUeU  contains  no  such  ctpression,  and  no  such  desig- 
nation of  parties.'  Wc,  '^the  people  of  the  United  States,  Ac, 
do  imlain  nad  e»tal4i»h  this  Vonttitutiirti,"  is  the  language;  and 
not  we,  the  people  of  each  State,  do  establish  tliia  compact  be- 
tweeit  ourselves  and  the  people  of  all  the  other  States.  We  are 
obliged  to  depart  from  the  words  c^  the  instrument  to  sustain 
the  other  interpretation;  nn  interpretation  which  con  serve  no 
better  purpose  than  to  confitse  the  mind  in  relation  to  a  subject 
otherwise  clear.  It  ia  for  this  reastm  that  we  nhould  prefer  an 
adherence  to  the  words  of  the  Constitution,  and  to  the  judicial 
exijusition  of  these  words  according  to  their  plain  and  common 
import* 

■  S«  Dinc'i  Afp.  IS  32,  33.  pp.  (1,  41,  41 

■  ClUbobn  (L  Oeotjp*,  2  D«]l.  410;  Martin  r.  ITantw,  1  VhMt.  R.  3M,  tU; 
DmtTa  App.  pp.  SS,  24,  S9.  30,. >7,  3^  M.  41,  -IS.  43,  51. 

Tbi*  lubject  it  oonidHtd  with  nuMli  oh*  67  PnsuiMt  Uannx^  ia  liia  K»po«Ha» 
aca>in[uui]ing  hit  MMMfa  «t  tlw  4tb  •(  Haf,  1S32.  It  b  das  to  iua  auinocj  to 
iiurti  tin  rallmring  pnagn,  wldcli  csUbiti  hU  noUon  of  th«  aafnumej  of  tlu 
ITnion  :  — 

"  The  CwrtttnHwi  of  the  United  SlaAm.  lmi«  atiStt  by  tbc  fetijla  of  tb*  M*wal 
SutM,  bcoMiMv  ^  BMxMtj,  U)  tb«  mtmt  ot  itt  powtn,  Um  pHMOMiit  aalliarily  of 
Um  Uniuc.  On  •oond  priaeipla  it  cu  ba  vlrwiod  In  no  otber  lixbt.  The  jwofhv  tlia 
blgbeat  BBtboKtr  knovn  to  our  i<7*tnn,  (rocn  utiwn  all  oar  InMltiiUoDS  «pring^  and  oa 
vliaia  tliojr  depend,  l«niiad  IL  Had  liio  paopU  «f  tbe  miy*rtl  8tal««  ibooghl  prapw 
to  Incorpoimto  tlwniaelTes  iato  otio  cnmowaity  wtdn  oae  s°v«niaM«t,  tliBy  nrii^t  ban 
doiw  lu  T)mj  bod  tbc  pa««r,  and  tbtra  waa  nothing  tben,  net  ia  there  anj^tng  nam, 
abeabl  Hmj  b*  a»  diipiaai,  to  fMvoiU  it  nay  wiad;  itapfid,  hovavw,  U  a  «Mtala 
]wiai,aiMidiBgtlMineofpai«UaBl«th*tpoiBt,  maklagthaaaltonatywanftlfcoa 
6u  ■  MauotiiUud  goranuDoit,  Md  prwattiog  the  Btata  goviiniB«at%  without  that 
BoM^  ptafeetlj  aaTtnigii  and  iadapendant  «t  tha  aational  goraiamant.  Had  tbo 
poopio  «f  tl>«  aoTDTal  Statca  iaeorpMatod  IhcmalTaa  Ibio  om  eonmanitj',  tby  ninat 
ka«B  Knaiatd  aoch;  tkcit  eooaUtBtioB  btntaing  than,  Uko  tka  cMutknUan  of  tba 
aawnt  Stately  iMafi^  of  «hanfa  utU  altwod  faf  llw  «IU  ot  tbo  nia>ority.  b  tb* 
fairtitiHiwi  «t  a  Stata  p>T«ramant  by  Iba  dUiwii  i4  a  Stal^  a  ooaipact  m  lonaad  to 
which  all  and  vmj  «atian  ata  tqoal  partioik  Thqr  an  al*o  tha  a«b  paitita,  and  nagr 
aniaud  It  at  pl«mn.  In  tlM  inrtitntion  of  thd  gwamnwnt  of  tb*  tJnitaJ  Siataa  faj 
tba  dtbani  of  cnrr  Stat^  a  «a»paet  waa  fotMol  brtWMB  tb*  whob  Amerieaii  [•■opW 
wbioli  ba>  Iba  (anui  fom,  iMd  pattakaa  of  all  tha  (loiUlln^  to  the««rat«f  ttapoitvo^ 
a*  a  eompact  batwom  iho  dtttuw  of  a  Staio  la  tU  fennaUon  of  tUalr  own  ocaaJftap 


ca.  in.] 


HATCB£  or  THE  OOXSTtTtTIO}!. 


26T 


§  866.  Bat  supposing  that  it  w«re  to  be  deeni«d  nach  b  com- 
pact amoDK  the  people  uf  the  several  States,  let  us  see  what  the 
enlightened  alatcsman,  who  viuilicates  that  opinion,  holds  as  the 
aplimpriate  deduction  £roiu  it.  "  B«ioi;  thus  dorircd  [says  he] 
I'Irom  tlie  same  source  as  the  constitutions  of  the  States,  it  has 
rithin  each  State  the  same  autliority  lu  tlic  constitution  of  the 
State;  and  is  as  mueh  a  constitution  within  the  strict  sense  of 
Iho  term,  within  its  prt*ji<:ribed  splien',  as  the  constitutiuos  uf  the 
States  an;  within  their  respective  spheres.  But  with  thiaobTioug 
and  ewentinl  difTcrence,  tliat,  being  a  compact  among  the  States 
in  their  highest  aoTcreign  capacity,  and  eonatitvtimg  the  ptapU 
thtreof  «tw  ptoplt  f«T  certain  purposes,  it  cannot  be  altered  or 
annulled  at  the  will  of  thn  Statm  individually,  as  the  coDstitntioQ 
of  a  State  may  be  at  its  individual  wilL"  * 

tim.    It  cannot  b*  *ll«r«d,  *xMpt  br  thoM  w1m>  Tonnol  it,  «r  In  th*  rnoda  pcaacribad 
bjr  tli«  partfm  to  the  conijNrt  itwl£ 

■Thii  Cttoatitwtioa  wMailopt»i  Torllie  purpoMof  mnedjingall  tba  drfeet* ef  Iba 

Bbdtniliaa;  and  in  tlu*  it  b»i  aiMecded  brjond  any  aJcalotion  thtt  oouU  kam 

I  tncn  fomuil  ol  anj  hanun  intCitaCian.    By  blDilin^  tlio  Stata  togctbcr,  Um  CoiiMitq- 

)  ttco  iwrfonua  tlin  ftivitt  odto*  of  tlia  DonfMlmtlon,  but  it  U  bt  tlist  mum  obIj'  that  it 

I'hm  urf  of  tb«  fir«i]i«irti(«  or  that  comfaot,  and  in  thai  it  b  mors  FiTwtnal  to  6u  par* 

,  at  it  bolila  them  togttlisr  bjr  a  nueli  alwmgar  tMud,  and  In  oU  otbv  rafiaeta,  fai 

[wUch  llw  oonfadrnitiaD  Culod,   th*  Cooatltittlan  baa  Wa  UimmI  wllb  complala 

Tha  «oi>fnl(it»tlan  mat  a  oomfoet  twImMi  Mivinla  tod  ind«p«n4«fit  StatM[ 

)  eMontion  of  wImm  arllcln,  in  the  jmovn  whidi  openlfil  intrm&Ity,  dcprnJcHl  oa 

I  State  gonmmtmU.     But  the  giMt  officn  of  the  Cosititation  by  incorponting  tha 

lljaople  oT  the  afvofal  Slain,  to  Hia  extant  <d  ita  pMror^  (ato  Mia  Mmnranitj,  and 

•naUiafi  it  to  act  dinctJy  on  tfaa  paoplo,  «aa  to  anual  th*  fomm  of  tha  State  govem- 

aienta  to  that  extant,  eiorjit  is  team  wh«n  tWy  wen  voucarnnt,  end  tu  pmOude 

Ihdr  agciu^y  in  gmmg  (fleet  to  thoae  of  the  genml  goremment     Tbe  gavvnunaal  of 

the  United  Slate*  nlici  on  Ua  own  narana  for  tha  exacutton  at  it*  power*,  aa  Ilie  Stat* 

farttanwiila  do  lor  tha  execution  of  tbtiia;  both  goi<ttiinunlt  having  a  conuB«a  oijfta 

fM  aoirocrig^  IIm  fwople,  — the  SUU  gftntamtmU,  tb*  prnpla  ef  each  Stato;  iho  a»- 

tiooil  goverwnitnt,  the  paojila  of  amy  Sule,  —and  Mmg  OMeaaUa  U  tha  pom 

■Uoh  cnattd  it.    It  i«  by  cxeouttng  ita  hioclioiit  as  a  govmnont,  ihn*  originatiiig 

Ltad  tkna  aclii^  that  the  CoMtilation  of  tb*  L'Mted  State*  bolda  the  Suiw  t^pithaf. 

Land  pecfiinaa  tha  cdcn  of  a  k^aa.    It  ia  owiag  to  the  aatsn  of  ita  powcn  and  tha 

[^higfc  eewCT  tnm  wbata  IJHry  are  dtriToJ,  the  people  that  it  pnfbnM  that  oOoebiltar 

^thaa  the  confadNatiiM  oc  any  iMgn*  wiikfa  »m  aiiuad,  Maf  a  eoupact,  ■Uoh  tha 

I  noTtmncDla  did  not  forv,  to  which  tlwiy  are  aot  partiM^  and  which  exeeiitci  ita 

'vn  powen  Inilcpoiidcatly  «f  tbaa." 

I  Ur.  Uadltoa'e  l.aIUr.  Korlh  American  Reriew,  (klobor,  1830,  p.  &t3.     Ur.  PU- 

(non  (afUmrde  Mr.  Juetice  PaUnoo),  ia  the  oonraation  which  fnmod  the  Coutito. 

-tion,  bdd  tb*>  dooliise  tkal,  ludar  tbecoiifadontion,  woSutr  had  a  r^t  to  wilLdraw 

^>faMa  the  UnlD«  wjthont  tbe  oouent  of  alL     "Theoonfoltration  (aaUho]  ia  la  the 

)  natnn  d  a  compact;  and  oan  any  Stat^  ualcaa  by  the  oonitat  «f  the  vhole,  either  fai 


268 


OOXSTITOnOS  OP  THR 


rATES.        [book  m. 


{  867.  The  other  branch  of  the  pro]>DAition  we  hare  been  con- 
sidcrio^  ia,  that  it  ia  not  only  a  compact  between  tho  svvcral 
Slates  and  the  people  thenMif,  but  also  a  compact  bctwcca  the 
States  aad  the  fedtral  j»i'«TtnMntt ;  and  t  convtrto  between  the 
ftdend  government  and  the  several  States  and  ever}'  citizen  of 
the  United  States.'  This  seems  to  be  a  doetriiic  far  more  in- 
Tolred  and  extraordinan'  and  incumprchensible  than  any  part  of 
the  preecding.  The  diflieultica  liave  not  escaped  the  obsen'ation 
of  thotic  by  whom  it  has  becu  advanced.  "Although  [says  the 
learned  commentator]  the  federal  government  can,  in  no  pottibU 
view,  1)6  considered  as  a  party  to  a  compact  made  anterior  to  its 
existence,  j-ct,  as  the  creature  of  that  comjiaet,  it  must  be  bound 
by  it  to  its  creators,  the  several  Sutcs  in  the  Union  and  the  citi- 
rens  thereof. "  *  If  by  this  no  more  were  meant  than  to  state  that 
the  federal  government  cannot  tawfnlly  exercise  any  powers  ex- 
cept those  conferred  on  it  by  the  Consti tuition,  ita  truth  could 
not  admit  of  dispute.  Hut  it  is  plain  that  something  more  was 
in  the  author's  mind.  At  the  same  time  that  he  admila  that  the 
fodi-rul  povcrnraent  could  not  be  a  party  to  the  oompaPt  of  the 
Cuiulilution  "in  any  possible  view,"  he  still  seems  to  iosiHt 
upon  it  as  a  compact  by  which  the  federal  government  is  bound 
to  the  several  States  and  to  every  eitiien;  that  is,  that  tt  haa 
entered  into  a  contract  with  them  for  tho  due  execution  of  its 
duties, 

%  368.  And  a  doctrine  of  a  like  nature,  namely  that  the  fed- 
eral goi-cnunent  ia  a  party  to  the  compact,  seems  to  have  been 
gravely  entertained  on  other  solemn  oceasionji.^    The  difficulty  of 

polillci  or  law,  wiUiilnw  their  pCMm  t  Let  H  be  nid  bjr  Pcnnsjrlruib  and  the  otluT 
lujia  .Sut««,  lliat  lh*f  Ua  Uie  nkc  of  |)Moe  mmmIbI  to  tbe  Mnrfdontjun:  tun  (be  now 
muina  her  original  right  wilbont  tlio  tCMrnt  of  Iho  doiMa''t  YaU***  Drhain,  4 
Uliot'a  IMaM*,  TSi.  Hr.  Dans  nMitnlvocallr  hoUi  t^  won  langni^  In  raapwl  to 
iha  Ocoutf radon.  '■  It  U  cImlt  {my»  h«}  tiN  p«opU  at  taj  «(  ittau  alona  novrr  nta 
takn  oc  willulrav  pow>r  TroM  lb*  Uniwd  SlaUa,  whioh  magnintnl  to  It  brall.aa  Uib 
people  td  all  Um  Stiles  o*n  do  rigbtMl;  in  •  jnMUklile  icTnlution,  or  at  tha  peo(4« 
can  do  ia  th«  fflanntr  tbrir  ConMitaliM  prcKnba."    Ikar'*  Xpp.  1 10,  p.  VI. 

Tha  Mdinance  of  ITST,  for  tbe  (SOVrnuDtnt  ot  lb*  NonliitMaiii  inrrltorr,  omtalns 
(u  we  bire  Mtn)  tertaln  artlclM  iloeUifd  to  U  "acliclxt  of  nun^KKf  ;"  but  (tnj  itn> 
aito  doeUred  to  'ronaln  tonvtt  uaallerBUe,  exMfit  hr  eamntm  anuntl."  So  ihit 
then  maf  ht  a  comfaci,  and  y«t  bjr  the  Btipnktiana  Dtithpf  puty  taaj  ba  at  Ubm;  to 
«flli<In«  h«ni  it.  or  abKlTe  lUelf  ttntn  iU  oUiptianiL     Act*,  jk  S3&. 

>  1  Tacker'i  Black.  Coonn.  ItM,  HO.  *   I  TMkir'n  Blnck.  Comm.  170. 

•  Dobaitt  ia  the  Seaate,  b  1S30,  on  Hr.  Tooft  motntloo,  i  Elluit'*  Dabalte,  31S 
to»l. 


CB.  in.] 


KATCntE  OF  TUB  CX)KSTtTtrnO)>. 


a6» 


mftintainiag  it,  howcrcc,  aeeaia  absolutely  inaupcnbte.  Tlie 
(cdcrnl  govcnuucnt  i»  tlie  result  of  the  Constitution,  or  (if  the 
phrase  is  deemed  by  any  jjcrfton  more  a[i)>ro))riatc)  the  creature 
of  the  compact.  How,  then,  can  it  be  a  party  to  that  compact 
to  which  it  owes  its  ovn  existence  ?  *  How  can  it  be  said  that  it 
has  entered  itito  a  contract,  when  at  the  time  it  had  no  capacity  to 
contract,  and  was  not  even  in  ««  f  U  any  provision  was  made 
for  the  genera!  gorernmeut's  becoming  «  party  and  entering  into 
n  compact  after  it  was  brought  into  existence,  where  is  that  pro- 
vision to  be  found  ?  It  is  not  to  bo  found  in  the  Constitution  it- 
self. Are  we  at  liberty  to  imply  such  a  provision,  attaching  to 
no  power  given  in  the  Conatitulion  ?  This  would  be  to  push  tho 
doctrine  of  implication  to  an  extent  truly  alarming;  to  draw  ia- 
fcronci.'«,  not  from  what  is,  but  from  what  is  not  stated  in  the 
lostnimeut  But  if  any  such  implication  could  exiat,  when  did 
the  genural  government  signify  its  assent  to  ttccomc  such  a  party  ? 
Whim  did  the  (wople  autborixc  it  to  do  so?'  Could  the  govern- 
ment do  BO  without  the  express  authority  of  the  pooplo  ?  These 
an-  qui-stions  which  are  more  easily  aski'd  Ibun  anawered. 

§  3'39.  In  short,  thi;  dillicultiL-s  attendant  upon  all  the  various 
theories  under  consideration,  which  treat  the  Constitution  of  tho 
United  ^tutca  as  a  compact,  either  between  the  aeveral  States,  or 
between  tho  people  of  the  8e\xra]  States,  or  between  the  whole 
people  of  the  United  States  and  tho  people  of  tho  several 
State*,  or  between  each  citizen  of  all  the  States  and  all  oUier 
citixcns,  arc,  if  not  abuolutoly  insuperable,  so  serious,  and 
so  wholly  founded  upon  mere  implication,  that  it  is  matter 
of  surprise  that  they  should  have  been  so  extensively  adopted 
and  so  zealously  propagated.  Tliese  theories,  too,  seem  mainly 
urged  with  a  view  tn  draw  conclusions  which  are  at  war  with 
the  known  powers  and  reasonable  objects  of  tho  Constitution; 
and  which,  if  successful,  would  reduce  the  goromment  to  a  mere 
confederation.  They  are  objectionable,  then,  in  every  way: 
firet,  because  they  are  not  justiGed  by  the  language  of  the  Con- 
stitution; secondly,  because  thoy  have  a  tendency  to  impair,  and 
indeed  to  destroy,  its  express  powers  and  objects;  and,  thirdly, 
because  they  involve  consequences  which,  at  the  will  of  a  siuglo 
State,  may  overthrow  the  Constitution  itself.     One  of  tho  fnn* 

>  Wtt>t«r'«  9pe«chi»,  «29;  I  EUkif*  XMMta,  Z2t. 
*  Omu'iAi^  J  32,  P-  41;  I  J-  I  U,  p.  M. 


270 


coNemrcnoK  op  toe  cnited  states.        [book  m. 


damental  rules  in  the  expoeition  of  every  JD«trum«Dt  ift,  ao  to 
OODHtnio  ita  terms,  if  pofmible,  aa  nut  to  make  them  the  source  of 
their  owrn  dcMtructiuii  or  to  mukv  Ihcm  utterly  voiil  an<i  nugatory. 
And  if  this  be  gvnerully  true,  with  how  much  more  force  does 
th«  nilo  apply  to  a  coustitution  of  governmeut  framed  for  the 
general  good  and  dc8ign«l  for  perpetuity  *  Surely,  if  aay  impli- 
cations ore  to  be  mnde  beyond  its  terms,  they  are  impticaticMis 
to  preoerve,  and  not  to  destroy  it.> 

S  870.  Tlie  cardinal  concluition  for  whieh  this  doctrine  of  & 
compaet  has  bct^n,  witli  so  much  ingenuity  and  ability,  forced 
into  the  langiioge  of  the  Constitution  (for  the  language  nowhere  • 
alludes  to  it),  is  avowedly  to  catabliah  that,  in  construing  the 
Constitution,  there  ia  no  common  um]Hrc ;  but  that  each  ^tate, ' 
nay,  each  department  of  the  government  of  each  State,  ii»  the 
supreme  judge  for  itself  of  the  powers  and  riglits  and  duttea 
arising  under  that  instrument.'  Thus,  it  hua  been  solemnly* 
asserted  on  more  than  one  oocamon,  by  some  of  the  State  legis- 
latures, that  tJiere  is  no  common  arbiter  or  tribunal  authorized  ti> 
decide  in  the  last  resort  ui>on  the  powers  and  the  interpretation 
of  the  Constitution.  And  the  doctrine  has  been  rcoentJy  revircMl 
with  extraordinary  seal  and  vindicated  with  uncommon  rigw.' 

>  The  Mlowloji  Mmg  Unguags  ta  ulniciad  rrenn  lutnKtioiu  givn  to  uum  repf^ 
aMitHtivoH  of  lJi«  Suir  of  Yirgiiiia  hj  ihtii  ooutitatnto  in  17ST,  with  prfstOM  to  Uin 
ocnfedentioa  :  "  Got-tramout  without  «ockm«  1*  •  propoiitioii  *t  ones  m  ahHud  md 
atlf<«Mttsdictory  OM  Uta  ide*  cnaua  a  cofirdi4om  of  th«  >n4M*tUiillli|^  It  t*  turn 
wtUwol  tiibniaiica;  M  b«>t  a  body  wlttioiit  •  •avi.  If  mMi  wonM  act  riglit,  gMWK- 
IMlUs  of  all  ktmla  wouM  tx  ntalaaa.  If  vlatn  ur  naUena,  «ba  an  tmt  aaaMbkgw  of 
mm,  iranU  do  right,  thara  would  be  no  van  or  diaordcn  in  the  mtiTcna.  Bad  aa 
Indlndnab  an,  ataUt  nc  went,  CIoIIm  men  with  public  aathoiitf,  and  almoat 
uilTtnallj  thay  cooaidar  thaniMtvae  aa  Ubafatad  flmn  Uii  ofaligaUou  id  naral  recti- 
tibla.brauuaUiDy  aTCDolaaga'aaManblc  tojwtiee."    1  Ahmt.  Una.  SM. 

■  lladiaon'*  VJ/giaia  B«|io«,  JaiuMrjr,  IftOO,  pp.  0,  7,  a,  B;  WabaUr'a  Bytwhn^  147 
to  10»,  tlO.  «11,  119  to  111.    « 

■Tha  L^laUnra  of  Vli^glitta.  In  IVM.taaoltad  "that  tbm  baa  eonnMit  arUtar 
to  oaaatnw  tba  Coaatiwtiatt  «f  tfci>  DbIimI  Stalaai  tk«  ConititiMion  b«j««  a  Mnall** 
caMpart  Utwaan  aonndga  SiaiMi  «m1)  Stale  haa  a  ri^t  to  oamtfwa  tha  aomfMt  fir 
itaalf."  Ototpaand  Sootb  Carolina  hare  Tcocattj  maintaiacd  tha mne  daebina;  and 
it  haa  baOD  aasattad  ia  the  Senate  of  the  Onllcd  Siatta  «ith  aa  Ubooaiaon  di))da]r  of 
aloqinaBoe  and  paKinadtr.  B  Dana'i  Abcfc1|^  <-li.  1S7,  an.  SO,  f  )3,  fip.  SS9,  kc.sm: 
Pana'i  App.  M  to  S!>,  S7  to  73;  8  Anwrkas  Annual  KKffmtr,  Ixual  KM.  ISI.  It  i* 
not  a  littla  m»rlial>le  that,  in  19)<\  tlta  IjagiaUtufa  «r  Vitjiiufa  th«a^  «<(tr  difar- 
mtljr,  aikd  than  dMmad  lb*  Snpntne  Gonrt  a  Ht  and  im^rtbl  tiibunaL  North  Anatrf- 
OAfUvlow.  Octoter.  l«M.pp.5Mi,SlS:S  Vbat  ILSSO.  SSS.  PfwuylnoU  at  tha 
taoM  thai,  IhoDgh  aba  did  not  danf  Uu  conrt  to  be,  vador  Ibe  Conatitiitiau,  lb*  apfao* 


CR.  tn.] 


KATURE  OP  TUB  OOSanTCTIMt. 


2n 


A  majority  of  the  8tah.-ti,  however,  have  never  assented  to 
tfaia  doctrine;  uid  It  liiis  been,  at  different  times,  resisted  by 
legislatures  of  several  of  the  States,  in  the  nwxst  fonnid 
cUrationtk ' 

§  871.  But  if  it  were  admitted  that  the  Constitution  is  a  com- 
tlie  couclmion  that  there  is  no  conunon  arbiter  would 
either  be  a  oecessary  nor  a  natural  ooncliuion  from  that  fact 
ling  alone.  To  decide  npon  the  point,  it  would  still  be- 
hoove OS  to  examine  the  very  terms  of  the  Ooustitution  and  the 
delegation  of  powers  under  it  It  would  be  perfectly  cotupctunt 
even  for  confederated  States  to  agree  upon  and  dcle^tv  uuthority 
to  construe  the  compact  to  a  oonunon  ar4)iter.  The  people  of  the 
United  States  had  an  unquontinnable  right  tocooGdc  this  power 
to  the  government  of  the  United  States  or  to  any  department 
thereof,  if  they  chose  so  to  da  The  qnestion  is  whether  they 
are  done  it.  If  they  have,  it  beccmies  obligatory  and  binding 
upon  all  the  States. 

8T2.  It  is  not,  then,. by  artificial  reasoning  founded  npon 
theory,  but  upun  a  careful  survey  of  the  langiiag«  of  the  Oonsti-. 
tution  itself,  that  we  arc  to  interpret  its  powora  and  ita  obliga- 
tions.    We  are  to  treat  it,  as  it  purports  on  ita  fac«  to  be,  as 

bflniMl,  «M  lUriTOiu  or  (ubatittiting  aoam  other  irlitoi.     Korth  Atnarioui 
id.  G07,  AOI.    The  irctnt  KMlntioiHof  )ier«ira  t-egUIitnrr  (inUarcli,  18S1) 
thai  A«  now  apfcons  at  Om  Sofmrna  Oourt  •■  tbB  imo  uid  conunoa  arUUr. 
«  of  the  ezpadUaiM  it  Uu  dM*hiw !«,  Out  U  a  doifi»  StaM  (Uny  ■  pnm  to  «ibt 
the  Ooiiii4it«t»a,  that  pawm  te  to  be  detOMd  iManet,  anlev  tlina  roUTth*  «t 
StaH*  «^U  aftttwanU  nuutate  tliat  power  hj  an  amvuiliiieiil  to  the  Coasthution. 
^4  Etliot'*  mb*l««,  821.    What,  thou,  b  to  bo  done.  «bcf«  t«n  8U1«*  naolvn  lb«t 
a  fomrt  eiiita,  aad  0D«  llwt  it  doM  not  aiUt  I    Sco  Ut.  TiwPnrfdont  Odluwa'a 
ittcr  of  SStk  Angnat,  1833,  to  Oarannr  HauUloB. 

>  MMMirhmntn  ofMslj  oppoaed  it  in  Ui*  naolntiaM  <i  h«T  Leglalatun  «f  tb«  ISth 

Fatonarr,  1TW,  and  JMlaMd"tkat  the  deeuioii  o^^cMM  ia  la*  ami  fruity 

OS  mikr  tha  CanatliMlos  of  the  Cnliod  Stttoi,  an^^ft  oautnrtion  of  M  lam 

la  punuaan  lliHMr,  an  ndiHlTvly  vmtad  by  tho^Bla^  tha  Judici*]  eonrtt 

tbe  ITntlad  Stat**."    ttaM't  App.  M.    t<ix  olh«r  Statist  that  tlma,  (earn  lohaiw 

ta  Iba  Mino  rmll     Nmtli  Amorioui  Rrnrw,  October,  1B30,  p.  600.     And  on 

t  otttdtmn  a  laiRsr  nambcr  h«T«  macurrod  on  the  Mi»e  pouL     Uane'a  Af^  STi 

St  to  S9.     Similar  naololioM  bava  bcaa  [aaiiil  b;  th«  LagitlatBrM  «t  iManra 

and  ConsMticut  In  18SI,  atkd  by  aene  otiwr  8l«Ua.    Row  i*  It  poaaibia  for  ■  inanmt 

to  iwcincUo  tbe  •ottoa  that  each  Stale  ia  the  niprane  judge  be  itaelf  of  the  conatnic- 

tkm  or  tlio  Cooatiliftioa  with  tbe  vaiy  6n(  Traolathm  oT  the  conrcntioa  «tii«h  fanaed 

tba  CwMtUntlw ;  "  lt«M)T«d,  Ar.,  tbat  a  national  pcofntnwat  ought  to  b*  artabUthe^ 

Coa^King  ef  a  tufrtnt,  lagialaliT«,)adlciu7,  aad  •xMulivo"  I    Joanub  of  Conm. 

ItMt,  8Si  4  EOiot'i  Databik  M. 


272  CONBTTTITTION  OF  THE  UmTED  STATES.  [BOOK  HI. 

a  GoNSTiTonoii  of  govemmeDt;  and  we  are  to  reject  all  other 
appellations  and  definitions  of  it,  such  as  that  it  is  a  compact, 
especially  as  they  may  mislead  us  into  false  conatructions  and 
gloBses,  and  can  have  no  tendency  to  instruct  us  in  its  real 
objects,  (a)  V        -   ; 

(a)  For  tha  coutnuy  view  see  iarther,  A.   P.  Upihur  (PeUnburg,   Va.,   1S40), 

Coiulractum  Contlrued  and  OoitdUutioiu  Profenor  Heatj  St.  Oeorge  Tacker's  Lee- 

Viitdiealed,  by  John  Tajlor  (1820),  iVeu  (urea  on  CoiutittUional  Iavi  (Richmond, 

Viev)»  of  Ifie   Comtaiaion  of  tht  VniUd  1S43),  and  the  ConJtitutianiU  Fitte  of  Ou 

Stata,   br  the  sanM  writer   (1828),  the  for  bttntten  the  Stata,  hj  Alexander  H. 

Beview  of  these  CommeDtarlee  hy  Jndge  Stepbeiu,  18S7-70. 


ca.  IV.] 


FIKAL  INTERPBETEB. 


278 


OHAFTEB  IV. 

TRO    IS  nKAL  JtlDGK  OB  TNTERPRETER  IK  CON'SimmOXAL 
CONTROTEftSlfK. 


§  S73.  The  consideration  of  the  qutystion  whether  tlic  Consti- 
tution has  made  provision  for  any  coiimion  arbiter  to  coiuttruu  its 
powere  and  oliligationK  would  pro]>erly  find  n  place  in  the  analy- 
aid  of  the  different  c1sii»eit  of  that  instrument  But,  as  it  ia 
immediately  connected  vith  the  snbjeet  before  uft,  it  seenu  expe- 
dient in  this  place  to  give  it  a  deliberate  attention.* 

§  374.  In  order  to  clear  the  question  of  all  minor  points,  which 
might  embamms  ua  in  the  discusfiion,  it  is  necesftaty  to  suggest 
a  few  preliminary-  remarka.  The  Conalitution,  contemplating 
the  pfKnt  of  limited  powent,  and  distributing  them  among  Tori- 
ouB  functionariet),  — and  the  State  govemnicnta,  with  their  func- 
tiouariea,  being  aUo  clothed  with  limited  powers,  subordinate 

■  The  poiot  wu  T0T7  atroD^jlf  argorA,  uid  math  eonaiilarad,  in  Ihs  mm  of  Cok>Bi 
*L  TiixiMa,  in  the  Suirane  Conrt  in  1S31  {«  W1u<i&  H.  SSI).  The  whole  usHnwat. 
u  wdl  u  iIm  jodfiDcnt,  dtatrrc*  ui  BtteutivD  reuliiig.  Tha  R>u}t  to  whkk  tb* 
Mfonnil  «(daat  tha  «ibtMie*  oJ  ■  connira  arbiter  load*  U  [wwMited  in  a  nty  loMlbla 
niMiMr  hf  Mr.  CUrf  JbhUm  HanluU,  lu  paj^  374,  S7T. 

"The  9Ueatiana  pnwnteil  to  Ih«  «o(ut  hf  the  tir*  &nt  pabla  Dwle  at  tlie  bar  an 
of  gnat  naf^itnile,  and  May  be  tmljr  aud  ritalljr  to  aflbet  t^  t^Bioa.  Thej  «Mhide 
tiM  iftqirity  whelhcr  tbe  Conatiution  and  k«*  a(  the  tlnilal  Stalaa  ban  faaan  Tiolatol 
bf  tb*  iaifmuO,  Tlikh  tho  ]i1alatifr«  tn  error  acak  t*  r«Ti*w ;  aad  matatain  tlttt,  »d- 
mlttlDg  anch  violall^s,  tl  b  not  In  tiM  ponw  of  tha  gorerntaMit  to  apply  a  Mmciira. 
Tb«r  naial*in  that  tlia  tntion  doca  uot  pww  ■  depattOKnt  ca[iab1r  o(  rntniniag 
paawtlr,  and  lijr  mtboritj  «f  law,  a»]r  alt««p(«  wWbh  ma;  ba  made  b;  a  part  agaiatt 
tin  losiliniale  pemm  of  tlw  <rhal«  ;  uti  thU  the  Kvranii|g^^^t>lncad  to  tlw  altrr- 
natlrt  of  aabmlUing  l»  anch  alWnpt*  or  of  rodatf af  iham^^^^  Tfan;  rnalat*!:)  that 
tlw  CWlittitioo  «f  tha  Onit«il  StMiu  hat  pravideil  mo  ii^^^K  thv  Om)  ocmtne- 
tioB  of  baiir,  or  of  tliB  Uwt  or  irsalira  of  tha  nation  ;  ^^ff&t  thii  power  OMjr  ba 
enfciaad  In  the  ImI  Maort  hf  the  ocnrta  of  ertrf  SUU  ia  Ae  L'tuon-  Thdt  tha  Con* 
atitnileo,  Ian,  and  tnalica  May  Nodva  a>  manj  oeaMrKUanii  aa  thrn*  an  fitatea ; 
and  lliat  tbli  ia  not  a  MlMhlaf,  or,  IT  a  nilidiUr.  la  ImonedialilB.  Thaae  abitnwt 
propoiitiom  KT«  to  bg  drtmnineJ ;  for  ho  who  ilemaBdi  deciiuM  without  ptntitting 
inipiiijr  aAttM  that  tha  detbioo  ho  adct  do«*  not  depend  on  imintij. 

"If  Mch  b«  Iba  Condttunan,  It  (•  tha  dntjr  of  thla  oMrt  to  bow  with  iwapMrthll 
autaMon  to  Ha  pravblont.     If  mich  b*  m4  Iha  Oonatittttloa.  it  b  eqnaltf  tbe  dutf 
of  thla  w«rt  to  ny  ao ;  and  to  perTom  that  iMk  which  Uw  Amerioan  peejila  htn 
ladgwed  to  the  jodicial  dtpwtnitait." 
VOL,  1.  — 18 


274 


CONSTlTCTtO!!  OP  TBE   CHITCD  STATES.  [BOOK  Ol. 


to  those  granted  to  the  general  govcnuncnt, — whenever  any 
r|U«Htion  arises  as  to  the  exercise  of  au}'  power  hy  any  of  thejto 
functionaries  under  the  stato  or  federal  guvcnun«nt,  it  is  of 
necessity  that  such  functionaries  miutt  in  the  flnst  instance,  de- 
cide upon  the  constitutionality  of  the  exei-ciso  of  audi  power.' 
It  may  ariae  in  the  eourae  of  the  discharge  of  the  functions  of 
any  one,  or  of  all,  of  the  great  departments  of  government,  the 
executive,  the  legislative,  and  the  judicial.  The  officers  of  each 
of  these  departments  arc  equally  hoimd  by  their  oaths  of  ofhce 
to  support  the  Constitution  of  the  United  States,  ant!  arc  there- 
fore consciuntiously  bound  to  abstain  from  all  acts  which  arc  in- 
ooDiiistcnt  with  it  Whenever,  therefore,  they  are  required  to 
act  in  a  ca«e  not  hitherto  settled  by  any  proper  aiitbority,  these 
functiunarics  must,  in  the  first  instance,  decide  each  for  himself, 
whether,  consistently  with  the  Constitution,  the  act  can  l>c  dona 
If,  for  instance,  the  President  is  required  to  do  any  act,  he  is  not 
only  auihori/ed  but  reqnired  to  decide  for  himself,  whether,  con- 
sistently with  his  constitutional  duties,  be  can  do  the  act*    So^ 

>  See  Iha  Fnlmlul,  No.  33. 

*  Mr.  JtHtnoa  carria  hi*  doctrino  mui^h  furthor,  anil  holdi  tbat  mch  dep«Hnnit 
or  go*«ntniaiil  tuM  an  Bxeltnive  ri^ht,  iiiiIrr|i>>iiilHnt  of  llio  juJJciiry.  to  dtcida  (or  itMlf 
a  M  the  tne  Maniruclion  of  IIm  Conititiition.  "Mir  OMUtnetitm," myt  ttt,  "to 
Miy  didttent  from  that  fon  quote.  It  U,  that  each  dopartOMiM  of  th*  |[ovaniinitnt  i> 
tmly  tnifajtndont  of  tha  otficn,  and  hu  an  eqiial  tight  w  dochU  fbr  Htmlt  what  i« 
the  iManlng  of  tbo  Conalltution  In  tho  lam  antalnod  l«  lla  aelloa,  aai  capBekUy 
when  it  ta  to  Mt  ultiniahJf  aiij  Bitlioat  •p|waL'*  AikI  he  proeenb  t«  giro  tXHDjpJM 
in  >Ueh  he  diiregarded,  nbcn  fmiilrnt,  ih»  dediioB*  «f  tba  jndiatrj,  and  nAtc  t« 
tiia  alien  and  aaditian  lain,  and  tho  eaac  of  Mottnirr  *.  Madbon  (1  Ctanch,  197). 
4  ipfferton'a  OonaapondtiKa,  314,  SIT.  Sm  ako  4  Jefliiraoii'a  ConMp.  >7  ;  Id.  7S ; 
Id.  37%  371.  M 


(a)  In  Atl««iiii]r-GMMfal  *.  Bantov,  t 
Wia.  C87,  thv  witm  i^^^ettnnon  ww 
fntaoad  Mill  httlitr.^^^B*  writ  thai 
Batatow,  the  gonni^^^H  Stah^  «w 
dafMled  bjr  tba  peopfl^n  tumm  lor 
TB.claction.  Ctniun  tfftaiam*  aUeUon  re* 
Mnn  Iran,  namtholaaa,  |ilacad  on  file 
wUh  tha  State  Boaid  of  OuinMn^  which, 
together  aith  iba  genaiae  ntnt*^  gore 
Um  OB  a{i|iartot  niajcritjr  over  the  ofipoi- 
SngtMkdidalfc  Thoivapm  ha  daJIwit  t» 
annttader  tW  tdHc*  *t  the  ead  at  lb* 
una.  Hid  on  f  tw  minvnA)  agaiut  him 
In  tiM  Sapniiu  Court  dtnied  tbe  astbor- 


Etj  of  that  «antt  t»  eoHMder  and  decide 
npon  tha  Utia  lo  tba  offica^  Ilia  (MdlloB, 
at  ataiad  bjr  hia  oaai»td,  wm  a«  Mlooa:  — 
*'l.  The  thne  dapaitatnU  of  tbe 
BlaM  gDveramrnt,  Iba  kgialalhtv  the  ex- 
(culivis  awl  jn'lidal,  m  eqatl.  oo-ecdt> 
nat^  and  ind(|iandctrt  tt  a>ch  oilier  i  ead 
thatMchd^attaaaetaittethaKad  ii  tbe 
nltintata  judge  of  tlie  dntiDn  and  ^oaU* 
Rcatlcn  «f  its  own  niBniWr  oa  Bnnban^ 
antgrat  o«lr  to  intpaachmmt  and  aiipnl 
lo  tha  pnDf>le, 

"i.  That  thiicounmut  take Jsdldal 
notice  of  wbe  ta  govtmor  ct  Iba  State, 


CH.  IT.] 


FINAL  OmsPBEUS. 


27E 


if  a  propoBition  be  before  CongrcM,  every  member  of  the  legia- 
lotivfi  IkkI;  18  bound  to  examine  and  decide  for  liinuiclf  whcthor  ' 
tfac  bill  or  rmolution  is  within  the  constitaitional  renoh  of  th« 
legiftlative  powers  confided  to  Coniijesa,  And  in  m»ny  oucs  the 
deciaiona  o(  the  exucutive  and  legiHlative  departments,  thus  made, 
become  fittal  and  coacluKiTe,  bcinff  from  their  very  nature  and 
dioracter  incapable  of  revision.  Thus,  in  measures  exclnsiip-ely 
of  ft  political,  legislative,  or  executive  character,  it  is  plain  that 
OS  the  supreme  authority,  aa  to  these  qucBtiaiui,  belongs  to  the 
Icgislutivo  and  executive  dcpartmontit,  they  eanaot  be  rcH'xatnined 
eUowhcrc  Thug,  Congress  having  the  power  to  declare  war,  to 
l«vjr  taxes,  to  npjjropriatc  luouey,  to  regulate  interoourse  And 
commerce  with  foreign  nations,  their  mode  of  executing  tiicsc 
powers  can  never  become  the  subject  of  rc-cxaminatiun  in  any 
other  tribunal.  So  the  power  to  make  treaties  being  confided  to 
the  President  and  Senate,  when  a  treaty  is  properly  ratified  it 
b«onincs  tlie  law  of  the  land,  and  no  other  tribunal  can  gainsay 
its  stipulations.  Yet  cases  may  readily  be  imagined  in  which 
a  tax  may  be  laid,  or  a  treaty  made,  upon  motives  and  grounds 
wholly  beside  the  intention  of  the  Constitution^  Tlie  remedy, 
however,  in  snch  cases  is  solely  by  an  appeal  to  the  people  at  the 
elections,  or  by  the  aalotary  power  of  amendment  provided  by 
the  Constitution  itself.' 

§  376.    But  where  the  question  is  of  a  different  nature,  and 
capable  of  judicial  inquiry  and  decision,  there  it  admits  of  a  rery 

1  Sm  i  ?Mi.A-9  IVUlMk  S15  to  SUL 

*  Tlu  rttlcralut,  Ko.  M.  Hr.  llmdiaMi,  in  tbe  Tirgiiiis  lUport  of  Junury,  IMO, 
ba*  enne  iato  ■  con>idanlwn  at  thSa  point,  uid  vccj  pfopsrlj  MigpsUd  that  thera 
imjr  U  iarnuTtion*  of  tlw  OonKitiitira  ncit  wUliiii  tba  reach  of  lb*  Jiidlcl*!  pawvt,  <r 
ca{iaNB  of  raacdkl  radnM  thna|^  Iho  inatnmmuUtjr  o(  oMirU  ol  Uv.  Rut  wo 
ONHiot  afTM  wUb  bin,  tbat  tn  &aeb  omm  (wh  SUM  nttyfake  th«  coMttiMtlm  of  thi 
ConMitiUtai  Into  lu  own  kind«,  uiil  doeUo  for  itaelf  ii.fcbat  nnn  ;  ■luhltM  I 
that  in  •  fiwn  of  judicial  ts^Uuio*  tliB  iltcinon  U  notliiBding  on  tbe  Sute*.  6ea 
B#p)rt.  pp.  8,  J,  8,  fit 


whra  b*  wa*  lAaaguTotod,  the  RCDiUMBMi 
of  liU  tIgMture,  kc;  knil  tbfmkM  can- 
not liBW  argntntnt  otrriiltiKe  upnn  tlx 
inb|i«t4.  Tbit  «Im  i<  rigbtTallr  entitled 
to  tiM  offloc  of  fovtntm  tm  i*  no  otae 
bceon*  a}ndldal  qmntkai,  and 

"8.  That  tb«  OaartltnUon  pmridw 
■«  Bwtuw  for  ouslli^  ■  fnooeofai  nnrpcc 
of  tilbar  of  lb*  tlmtt  dopaftmcnta  of  tbo 


g»T«nnient ;  ilut  tkit  pomr  ntt*  wttb 
Ike  p«opi^  to  b*  Mcrnted  Iijr  thcni  when 
tfcej  Uiink  tbe  exlgmej  nquina  jL' 

The  ttajtliBgdoctiiiN  tobraadlfitattd 
reccircd  to  little  MuatNunwe  ban  ttia  i 
cooTt    to    whifh    !t    •■■    adilneaid    •■  | 
Marcrljr  to  bs  trotted  witb  tbe  conKeajr  </J 
a  dlMnaifon. 


276 


coKsincnoN  op  thr  ukiteo  btatis.        [book  m. 


different  conBidcrntion.  The  decisioo  then  made,  whether  in 
furor  or  Kgainst  the  constitutionality-  of  the  act,  hj  the  State  or 
hjr  the  national  authority,  by  the  legislature  or  by  the  execntiTe, 
being  capable,  in  itt«  own  nature,  of  Ixing  brought  to  the  tent  of 
the  Constitution,  is  aiitiject  to  judicial  rvviHJou.  It  is  in  such 
ctu^ea,  as  we  conceive,  that  there  is  a  final  and  common  arbiter 
provided  by  the  Constitntion  itsvlf,  to  whww  decisions  all  others 
are  aabonlinate ;  and  that  url)itci^4»  the  supreme  judicial  aathor- 
ity  of  the  courts  of  the  Union.*  (a) 

'  Dkiw't  Afif.  U  M,  45,  ]>p.  S!  to  (S.  It  »thii»  M*  f«rj  iIumtd  K»tiRc«tk<n  to 
<ivate  the  Mlonng  |Mng«  [Mm  tb*  leuMd  ComncnUtiw  of  Mr.  Cb«se«Di>r  Ktnt, 
Ibui  wluin  T«r7  fc«  jwdga  in  onr  oonatrT'  an  mim  fnlmndlj  roned  En  ooDMitn- 
Uonal  law.  AAer  tMunentiag  tb*  jvdSdU  poven  in  tbc  CMutiUtioa,  be  prooteJ* 
to  obKm :  "Tha  pmfrittj  aad  fitnca  of  tboe  jodicial  powna  Mtn  to  nmlt,  h  ■ 
ju«M«Mr  coDaaqoene*,  trim  tbo  snlon  of  tbaaa  Stataa  In  «w  mrinnai  fmttamnKt, 
and  ihej  nu;  be  oontideml  at  raf nialta  to  ft*  ralalaiwa.  Tbs  JudkU  powar  in  amy 
garenimont  muit  be  cnritcnairc  with  tba  power  of  Idgiilation.  Vtn  Oun  b»  paw«r 
to  tnlfrprct,  pinQoancc  and  cxetnto  the  kw,  tha  gwwiuant  wooM  tttbor  pniA 
throujth  lu  own  ImbcvUlly,  at  wti  tba  ouo  witb  tbe  old  oonredemijan,  or  otbcr  p«»Mi 
Biwt  ht  aMumcd  by  lb*  l^lailr*  W;  lo  tba  dattroctku  of  llbtity."  1  Kanfa 
'  Oeoun.  (3d  cd.  [L  SM),  I.ac1.  U.  SJ7- 


(a)  Tin  aDthor  «]Waka  ban  <rf  «  <I*- 
j  obkn  Bw  or  againat  tbe  toNatitwtionalitj 
[«(  a  pnrtienlar  ML  Cpea  anob  a  qiica- 
'  Ika,  a*  h*  tnd;  mnuki,  the  final  atUtaf 
I  Is  "  tha  aupnm*  jaitlcUl  antboiltr  of  tlia 
I  ooiuta  of  tiie  Unaon."  Tha  final  dacidon 
I  of  that  nntboritj  i*  binding  span  all  the 
I  faopla,  all  tha  Sutaa,  and  all  tho  depaH- 

MtBis  of  tbc  ganenJ  gavrniiMet 

Bat  aa  brtwren  thtw  aannl  dvpart- 

nMnIa,tbe»  an  and  ma>t  be  bounda  to 
I  iMa  EMidndvanaaa  of  adjudication.  Tlia 
^^naalka  tbat  la  Judicial  to^f  niajr  ba  po- 
Ljltlcnl  t«-«nam«.  Judicial  qneitioaa  tba 
I  «OMrtadMiid«;  poUtioal  an  addnwd  to  tba 
^viadc*  of  the  Icgiiktarc.     To-day  tha 

gaMtka  my  be  iriietbtv  a«  axlwing  act  it 
IVMttiinioaBl.  nt  ia  p««l;  Judicial. 
[  Tn-momiw  the  art  nuj  bkve  upind,  and 

tha  ^uaaiion  nuqr  be  wlMtbtt  it  Aonld  ba 

raaaatttd.      That  iinnlion  it  political. 

SwjifMM  tfaara  ba  no  othra  obitction  to  iU 
I  M-cauKtMKBt  than  dcabti  of  ita  oonttita- 
I  tionalit  J,  are  k^ilatota  bound  to  dtlar  to 
[th«Jndj{Bc«tel  tba  oonit  in  tha  axardaa 


of  the  k^alatira  function,  and  thenloi* 
to  it-mact  the  law,  thonnh  la  tbfir  n<rn 
view  It  naj  lit  •  cleat  and  dunKtroua  in- 
fnction  nt  tba  Conatilutioa  f  TUa  i*  a 
qweatioa  ^nite  naide  fram  tbat  ben  di» 
ciutod  hf  our  antbor. 

Aa  Qlaatratlnjt  Ihia  i)Matlan  a  notnl 
iMhniot  tnaj  !»  nfcmd  to.  I'nviam  to 
1S33  the  Soprano  CmK  «f  Ibe  Unitad 
Stota  bd  in  a  dellWato  dacjdott  da> 
flarad  tbat  Conpaaa  had  tha  powtr  to 
ehtftar  a  Bank  ef  tha  Unitad  Sudn. 
Bat  in  IStS  tha  queation  of  t«-diaft«c 
aritinft  attd  a  bill  haTtog  pMaed  tba  two 
houtea  for  the  pnrpcw,  Prtatdrfit  Jackson 
Tctonl  it.  In  the  eoune  ef  hia  veto  nca. 
■me  be  mjt :  — 

"  It  <a  nMlutainol  bjr  Ibe  adroaUe*  of 
tba  hank,  that  lu  oavulilutlanall^,  ia  all 
ita  faaturaa,  oa^bt  to  bt  ooHUarad  aa 
laltlad  bf  |«KedeBt  and  bjr  Uie  drciaion 
of  tba  Suimme  Conrt.  To  thia  ocvcltt- 
aioe  I  enwot  aavut.  Mere  prMtdaat  ia 
a  dangnon*  touica  of  authoritjr,  and 
ahonU  not  ba  ngtnUd  aa  dcdtUng  qaav 


CH.  IT.] 


nSAL  ISTEEPBKTKR. 


«n 


g  376.    Let  08  examine  the  grounds  on  which  this  doctrine  is 
niHiutaincd.     The   Constitution   declares   {Art    6),    that   "  2%t* 


Ilan>of«>D9tiIutioiial  lOirn.  rxoeptwhcn 
tbn  Mi]ui«Men«<!  at  the  pcopln  and  the 
State*  can  be  conndcreJ  m  kcU  »rttlcd. 
8a  Itx  (ram  thto  \mbig  th«  cue  m  tUa 
Mt)|«ct,  *n  •n^uiDNit  agalmt  tha  bwJc 
»igbt  bo  bu«l  on  praocdaut.  One  Con. 
grm.  In  1791,  docidnd  In  Iivorof  abuik; 
Uiethw,  b  ISll,  dMiiied  ipibMt  lU  Ous 
Cungrvn,  in  IS  16,  ibtiiUd  a^ant  & 
T»uik ;  uiothor,  in  18Id,  decided  in  it* 
fkvor.  Prior  ia  Ihit  pnoanit  Congnaa, 
Ihviffiirc,  thp  prronlfHta  dnwn  from  th»t 
toUR'n  wrrv  wiiial.  If  wb  mnrt  to  tliit 
Statu,  tlic  uprcjuiona  or  Ipgiilniivc,  rx- 
•ratira,  and  judicial  opinion*  ajpinit  the 
l«ak  have  beta  proiiMy  to  lliviw  la  Ita 

brcT  H  four  to  oDa.  Tb«rr  la  nothing  in 
pnetdent,  thcrororo.  which,  if  ita  author- 
ity won  ailniitltid,  «ii|{bt  to  iridgh  in  bvor 
of  the  act  before  m«. 

"  If  th«  opinion  of  tba  Su[>rctiic  Court 
eonnd  tha  wbol*  pwati  of  ihla  act.  It 
onf^t  not  t»  «Mtnl  ifca  c^nrdinata  au- 
tbentka  id  thi*  eonmincnt.  The  Con- 
grwi,  iha  wccmlivi-,  an>l  Um  muK  oinit 
each  for  itatir  be  guided  bjr  its  otm 
opisioM  of  the  Conxitntkoi.  Kach  pub- 
lie  oOen,  aha  takw  ad  talk  to  aupport 
tha  0«uMilulkai,  ■««>(*  that  ha  will  nip- 
port  It  aa  bo  snikfMaiidi  it.  and  not  aa  it 
i*  luderttood  hj  othcn.  It  la  ai  much 
tha  duty  of  tha  Hoaaa  of  lUiatoantallTaa, 
ef  Ihr  Sxnalo,  and  of  the  PnaMenl.  to 
dtvlde  apon  the  oonMitntioaalitj  of  aay 
bill  or  molutian  «hieh  maj  be  ptuanted 
to  thMD  for  piaiaga  or  approntl,  a*  It  ta 
o(  tba  mprau*  JudgM  when  it  may  be 
bronRtit  befoi*  llMn  br  Jodiiial  deoiiisa. 
Tbv  u(«niMi  of  ttiB  jiiJ^H  hu  mo  mora 
anlliontj  ore*  Oa^tna  than  the  ejdkioM 
•f  CciaipvB  haa  one  tba  jodfaa ;  tai,  on 
that  point,  lb*  PiMtdnt  I*  tndepaiHUot 
of  both. 

"The  anthorftr  of  the  Sttpreme  Oovtt 
nwat  not,  tbmloie  far  ptnuitiad  to  oon- 
trol  tha  Confnai  or  tha  «Hcnllv«^  vhrai 
aetbtg  In  thMr  ItglaUtiT*  nfuOlim,  bat 


to  have  only  xnch  infloeneo  aa  the  force  of 
their  rtuioninH  may  dcanrvr." 

Again,  <!iiiini{  tli«  adniiiiMtntioo  of 
fml'lnnl  BucIiniiMi  the  Sapreme  Conil^ 
in  a  caw  before  it  involving  a  ^naatioii  tt\ 
peraoniil  liberty,  donlrd  thn  porer  ot  COo* 
gma  to  fxrlado  ulavcry  (rum  the  Ttatl- 
torir*.  This  opinion  bpcame  of  vital 
interval  nnil  inipoiUncc  in  the  Pnaidcn- 
tial  t-lcction  wliich  rollovud,  and  PimUuiI  i 
linooln  Ihna  rafcrrod  to  it  in  biainauffnnil; 
"  I  do  not  forget  the  jHwition  twam«<l  by 
sotnei  that  vuuitilulion&i  iiaaitiona  are  ta 
be  dea<)Fd  by  tho  SupririQii  Court ;  nor  do 
1  deny  tbiLt  aoch  deciiloiu  nuat  b*  bind- 
inn.  In  any  caa^  upon  the  partial  to  a 
«uit,  M  to  the  otgect  of  that  init,  while 
they  an  alao  entitled  to  T017  high  ro- 
apcet  and  couddoratlon  In  all  [laraltel 
caiea  by  all  other  dapartmenta  of  the  gov- 
eroinent.  And  while  it  la  obviooaly  poa- 
Bible  that  auch  doeialon  may  be  anonaeiM 
Id  any  i^vtn  caea,  etill  the  eril  efliMt  fol- 
lowing it.  bring  limited  to  that  particular 
eiH,  wilb  the  chance  that  it  may  fat  enr- 
mled,  aod  nercr  baeoma  a  pncadent  for 
other  caaaa,  ceabMlar  be  borne  than  could 
the  mrila  cf  a  ^Ifetvait  practjoe.  AI  the 
aauc  tima  the  candid  dtlien  mniit  con- 
iNa  that  if  the  policy  of  the  giiveiiiment 
«pan  vital  qncetioiiiw  aOiwting  the  whelo 
people,  li  to  be  iltcTooably  6inl  by  d^ 
ciaion*  of  the  Sn[nme  Court,  the  l«it*U 
they  are  mde  in  ordinary  Utlgatkn  be- 
tween putice  in  petaoaud  aetkau^  tha 
people  wlU  have  oeMed  to  be  their  own 
Tuh^  hatiag  to  that  axtont  practkaUy 
rreagMd  thtir  gevwanctit  into  the  hrwdl 
«f  that  eniBcM  tdbnaa). 

"  Kor  ia  there  in  thii  view  any  a— nit 
npon  the  oonrl  or  tha  judge*.  It  li  a  duty 
rtoae  which  they  may  not  ahrinh,  to  de- 
cade easce  ptof^Hy  brought  before  them, 
arnt  it  ia  no  bolt  of  thUn  if  other*  aeek 
to  tnm  thdi  decjriant  to  political  pur- 
poaaa.  One  aectlon  of  enr  country  fco- 
lisrea  ilaTtry  U  rigkl  end  ought  to  h%  < 


S78 


CONSTtTUTIOS   OP  THR  iraiTKD  STATES.  [BOOK  lU. 


Cousiitution  and  the  iatea  of  th«  Uiiltcil  Stat«s,  which  shall  be 
ntade  in  [mniuancc  tlion-of,  aud  ult  Irtatit*,  Ac,  shall  be  the 
tuprtme  lait  of  the  luiid."  It  also  declares  (Art.  3),  that  "the 
judicial  power  shiiU  extend  to  all  cases  in  taw  and  equity  arising 
under  this  Cotutitution,  the  laws  of  the  United  Statea,  and  trea- 
ties madti,  and  which  shall  l>e  made,  under  their  authority."  It 
fiirthor  declares  (Art,  8),  that  the  judicial  power  of  the  United 
Stales  "nhall  l>e  vested  in  one  Supreme  Court,  and  in  such  infe- 
rior courts  as  the  Congress  may,  &om  time  to  time,  ordain  and 
eetahllsh."  Here,  then,  we  have  exprosa  ai»d  dt-tenuinate  provi- 
sions upon  tlie  very  subject.  Xuthiag  is  impcrfcvt,  and  nothing 
is  left  to  implication.  The  ConstitutiiHi  is  the  uuprcme  law; 
the  jtidieial  |>ower  extends  to  all  caMM  arising  in  law  and  otiuity 
undnr  it;  and  the  courts  of  the  United  States  are,  and,  in  the 
last  reaort,  the  Supreme  Court  o[  the  United  States  is,  to  bo 
vceite^I  with  this  jtidicini  power.  No  man  can  doubt  or  deny  that 
the  power  to  construe  the  Cunstitutioo  is  a  judicial  power.^    The 

>  I  Dm*^  AtMt-  eb.  197.  ut.  so,  {  IS,  p.  SW;  Duw'(  App.  f  IX  fp.  «Sk  SO; 

J  M,  I>^  SS,  M  ;  1  WilMrD'i  LraUm.  (SI,  ttO,  49S. 


oUmM.  «U1»  tha  otlier  b«li«T«i  It  b 
WTMf  awl  «aglit  Ml  to  Im  «itMd*d. 
TUi  {■  tb«  aoljr  MlMMtial  <IUpaw.  Tin 
fbgftiwbTn  eimn  of  tlw  0»wUt«iaa, 
mm!  tha  kw  fb(  tht  wiypiwilBa  «f  tite 
'IW»%B  alM^Md)^  wa  fA  M  *dl  «■• 
tocaA,  ptriar*^  M  M7  hv  «M  «*«r  h*  U 
•  nMHraatt;  wfaan  tih*  Boial  «Ma  of  tlw 
ft<fU  tMpatfrctlr  ■anam  tb*  Imt  OttO. 
n*  xmi  bed;  nl  tha  pioylt  abUa  by  tlM 
tryUfii  •U^Mka  la  faUl<»a^  wd  • 
th«  tawk  am  h  «Mk.  nu  I  Hunk 
«MMl  Im  fmtK^mni;  ud  tt  ««ild 
htwMW  ta  kttk  «MI^  afkn^  tW -irua- 
tloa  of  tfca  mjHim  tUa  MbMk     TW 

Pn>m4,  >««U  ba  aUhMMr  ml?^  vidf 
«at   MBMlM   la   «M  mtHmt    ^Sk 

t-ia  I wl  *wW  at  b»  ■maAiJ  »  ri^ 


hrtha««W.- 

Sack  vna  th 
jMbaa  m4   liMria. 

«p^^ly    II  lull  t  by 

r  tW  iMd  «nit^  Cknr  nd  Xf.  Wab. 


nd  u  aanaMljr  dehaded.  The 
id  km  alio  ban  nhfteM  *»  ■>>up 
crilkkqi.  uatMjf  at  llM  kuda  of  Pro- 
Imar  SuMd  Trkr  in  hk  Xnm^  at 
CUtf  Jwliea  Am^.  Wa  eootart  o^ 
«b|¥«  hat*  with  •  ifc^l  nmtaki  tbt 
bMwdaty  batwvaa  b^kUiT*  aad  jmlidal 
pow«r  U  ia  Krami  clar.  Tb  tbdan 
vhal  tba  kw  <«,  b  tba  pmiaaa  af  tha 
kltar;  to ikafac* «hii it ai*U  k.  aritfaia 
tba  HtaiM  d(  tha  C«aMttMtie«K  pMaiaa  la 
t)v  fanv.  Aad  «k«  iha  ^aatka  h 
wtet  m  *aw  HMia,  it  k  tk*  daty  «f 
anty'pMty  calkd  ipn  to  «anek«  is 
JaiHiaaiBiaaikirtB.  ttaMOfaimm- 
I    -     'j.         '-        -     -       -- 

tha  Bghtfeawa  •»«».(*' 
Ifat  b«  daa 
th* 
t»  Ma.  Wn  «t  w  hk 
nat  k  •  al^  !■«(«.  aad  jMl  nk  kr 

k  iihO  111 la  ihM  k  I  itii 


CH.  IV.] 


PIKaL  II 


£79 


power  U>  coniitTue  a  treatv  is  flearlf  so,  when  the  case  ariBes  in 
jud^nent  ia  a  controversy  belwocn  tndividuala.*  Tbc  like  prin- 
ciple must  apply  wliGru  the  mcauiaf^  of  the  CuustitutioD  uritKW  in 
a  judicial  controvcrey ;  for  it  is  aii  nppropriuU^  fuiiotJun  of  tlio 
judiciury  Ut  cuustruo  InvKr*  If,  thi-n,  h  case  uudi-r  the  Conittitu- 
tloii  diM»  ari«e,  if  it  i»  capable  of  judicial  examination  and  deci- 
aion,  ve  sec  tirattnc  very  tribunal  i»  appointed  to  make  the 
dvcisiotL  Tli«  only  jKiint  left  open  for  controversy  is,  wbellicr 
such  decision,  when  made,  is  conclusive  and  binding  upon  tlie 
Staler  nnd  the  people  of  the  States.  The  reasons  why  it  should 
be  so  decnked  will  now  l)c  aubmittect. 

§  877.  In  the  first  place,  the  judicial  power  of  the  United 
State*  rightfully  extending  to  all  such  oasea,  its  judgment  bo* 
oomea  i^faeto  conclu»ivu  twtwecn  the  parties  before  it,  in  i»- 1 
Bpect  to  the  points  decided,  untves  some  mode  be  pointed  out  by 
the  Constitution  in  which  that  judp^cnt  may  be  revised.  \o 
such  mode  is  pointed  out.  Goni^rvits  is  vested  with  ample  au- 
thority to  provide  for  the  exercise  by  the  Supreme  Court  of  ap- 
pellate jurisdiction  from  the  decisions  of  all  inferior  tribumila, 
whether  State  or  mitional,  in  cases  within  the  puniew  of  th« 
judicial  power  of  the  United  States ;  but  no  mode  ia  proridod  by 
which  any  sujjcrior  ^ihuiuij  can  re-cxuminc  what  the  Supremo 
Court  bos  itself  decided.  Ours  is  em|)hutically  a  jrovemnient  of 
laws  and  not  of  men;  and  judicial  decisions  of  tlic  highest  tri- 
buital,  by  the  known  course  of  the  common  law,  are  considered] 
as  estublishing  tlie  true  coustructioii  of  tlie  laws  which  are 
brought  into  ooutroversy  before  it.  I'be  eaae  is  not  alone  con- 
sidered as  decided  and  settled,  but  the  principles  of  the  decision 
are  held,  as  precedents  and  autliority,  to  bind  future  cases  of  the 
same  nature.  Tliis  ia  the  oonstant  practice  under  our  whole  sys- 
tem of  jnriiiprudeno&  Our  ancestors  brought  it  with  thorn  when 
they  first  emi.Lrrated  to  this  country,  and  it  in,  and  alwaj-s  has 
been,  considered  as  the  great  seeurity  of  our  righta,  our  liberties, 
and  our  property.  It  ia  ou  this  account  tiiat  our  law  ia  justly 
deemed  et-rtaio,  and  fonndi'^  in  permanent  principles,  and  not, 
dejHMident  u]>on  the  caprice  or  will  of  particular  judges.  A ' 
more  alarming  doctrine  could  not  be  promulgated  by  any  An>eri- 

■  8m  AddnM  of  CoDgrtss  Fib.  17$7;  JMnttUd  Ce«igti«M>,  33;  BA«k  m  tb 
OtMtlUlloB,  App.  X  ^  Sis. 

■  Bwon't  Abtidgncfil,  SUbttc  IL 


280 


CONSTITUTION   OF  TUB   UNITED  STATES.  [BOOK  II). 


can  court,  than  that  it  was  at  Hbertj-  to  (lisrv^anl  ull  former  rules 
|an<l  deciBiono,  and  to  decide  for  itwU,  without  reference  to  the 
settled  courao  of  antecedent  principles. 

§  878.  This  known  cournc  of  pruCii'dmg,  tills  settled  habit  of 
thinking,  this  couclusivo  effect  of  judicint  adjudicntioiis,  was  in 
the  full  \-icir  of  the  fnuuera  of  the  Constitution.  It  woh  re(}uired 
and  enforced  in  everj  State  in  the  Union,  and  a  depart^ire  from 
it  n-ould  have  been  justly  deemed  an  approach  to  lyrunnj'  and 
arbitrary  power,  to  the  exercise  of  mere  discretion,  and  to  the 
ab«ndonu>ent  of  all  the  just  checks  npon  ju<licial  autliority.  It 
would  seem  impossible,  tlieii,  to  preatuue,  if  the  people  intended 
to  introduce  a  new  rule  in  rc«pcct  to  the  decisions  of  the  Supreme 
Court,  and  to  limit  the  nature  and  operations  of  their  judgments 
in  a  manner  wholly  unknown  to  the  common  law  and  to  our  ex- 
isting jurisprudence,  that  some  indication  of  that  intention  should 
not  l>c  apparent  nn  the  fa«e  of  the  Cnnfttitulinn.  We  find  {Art 
4)  that  the  Constitution  has  declared,  that  full  faith  and  credit 
shall  be  given  in  each  State  to  the  judicial  proceedings  of  erery 
other  State.  But  do  like  provision  has  )>een  made  in  rcHpect  to 
the  judj^nents  of  the  courts  of  the  United  States,  because  they 
were  plainly  supposed  to  be  cd  paramount  and  absolute  obliga- 
tion tliruuifhout  all  the  States.  If  tlie  judgments  of  the  Supreme 
Court  upon  constitutional  questions  are  conclusive  and  binding 
upon  the  eitincns  at  large,  must  they  not  be  equally  concltuive 
upon  tlio  States?  If  the  States  are  parties  to  that  instrument, 
are  not  the  people  of  the  State*  also  parties  ? 

§  879.  It  has  been  said  "tliat  however  true  it  may  bo  that  the 
judicial  department  is,  Ju  all  questions  submitted  to  it  by  the 
fonns  of  the  Constitution,  to  decide  in  the  lost  rvsort,  this  resort 
inu8t  necessarily  be  dc«mcd  the  last  in  relation  to  tht  other  cU- 
parimentt  of  the  goPtmmfttt,not  in  relation' to  the  rij/ktt  of  tkt 
partiet  to  the  eongtitutiontU  compact,  from  which  the  judicial,  as 
well  aa  the  other  deportments,  hold  their  delegated  trusts.  On 
any  other  hypothesia,  the  delegation  of  judicial  power  would 
annul  the  authority  delegating  it;  and  tlie  eoneurrcnee  of  this 
department  with  the  others  in  usur|>ed  powers  might  subvert 
forever,  and  beyond  the  poasible  reach  of  any  rightfat  remedy, 
the  very  Constit^ition  which  ull  n-ere  instituted  to  preserve."' 
Now  it  is  certainly  possible  tliat  all  the  du[>artmeuts  of  a  govern- 

>  Usliaan'i  Tbgiidt  R«|>erl,  Jau.  leoo,  n>.  8,  «t 


CB.  IT.] 


PIKAL  INTEBPRETen. 


381 


tnent  mky  conspire  to  subrert  the  oonstitutioii  of  that  govcmm«nt 
b;  which  they  are  created.  But  if  the;-  should  so  coiupire,  tliere 
votild  atill  romain  an  adequate  remrdy  to  redress  the  evil.  In 
the  first  place,  the  people,  by  the  exercine  of  tlie  eloctire  fran- 
chiiie,  can  easily  check  aud  remedy  any  dangerous,  palpable,  and 
deliberattf  infraction  of  the  CotiHtitutioo  in  two  of  the  great  de- 
partmcnts  of  p>vernmcnl ;  and  in  the  third  department  they  can 
remove  the  jud^vM*  hy  impeaclimcnt,  for  any  corrupt  couapinicicii. 
Bciiidefl  thcHc  ordinary  remedies,  there  is  a  utill  more  extensive 
one  embodied  in  llic  form  of  the  Constitution,  by  tlic  puwer  of 
amending  it.  which  is  always  in  the  power  of  tlirL-e-fuurlhs  of 
the  States.  It  is  a  supposition  nut  to  be  endured  fur  a  raonient, 
thnt  three- fourths  of  the  States  would  conspire  in  any  dvliboratc, 
dangerous,  and  pKlpnble  breach  of  the  Constitution.  And  if  the 
judicial  department  alone  sliould  attempt  any  usurpation,  Con- 
gre«s,  in  its  legislative  capacity,  has  full  power  to  abrogate  the 
injurious  effects  of  such  a  decision.  Practically  speaking,  there- 
fore, there  can  he  very  little  danger  of  any  such  usurpation  or 
deliberate  breach. 

§  8H0.  But  itf^is  always  a  doubtful  mode  of  reasoning  to  argue, 
bom  the  jMssible  abuse  of  powers,  thnt  they  do  not  exist '  I^t 
ua  look  for  a  moment  at  the  consequences  which  flow  from  the 
(locti-inc  on  the  oUier  side.  Tliere  are  now  twenty-four  States  in 
the  Union,  and  each  has,  in  its  aovereign  capacity,  a  right  to 
decide  for  itself  in  the  last  resort  what  is  the  true  eonstructioa 
of  the  Constitution,  what  are  its  powers,  and  what  are  the  obli- 
gatiuna  founded  on  it  We  may,  then,  have,  in  the  free  exercise 
of  that  riffht,  twenty-four  honest  but  dififcrent  exijositions  of  every 
power  in  (hat  Constitution,  and  of  every  obligation  involved  in 
it  What  one  Suite  may  deny,  another  may  assert;  what  one 
may  assert  at  one  time,  it  nuty  deny  at  another  time.  Tbia  is 
not  mere  supposition.  It  has,  in  |>oint  of  fact,  taken  place. 
There  never  has  been  a  single  comititulional  question  Bf^itated, 
where  different  f^tatea,  if  they  have  exprcased  any  opinion,  have 
not  expressed  different  opinions;  and  there  have  been,  and  from 
the  fluctuating  nature  of  tcgislative  bodies  it  may  be  supposed  I 
that  there  will  continue  to  be,  cases  in  which  tliu  sumo  State  will 
at  different  times  bold  different  opinions  on  the  same  question. 
Uossuebusetta  at  oue  time  thought  the  embargo  of  1807  uncon- 

>  8m  AudmM  *.  Dmm,  <  WlioUoo'i  B.  3M,  SML 


282 


C0N8TITUTI0K  OF  TBB  tWrTBD  STATES.  [OOOK  in. 


V 


atitutionnl ;  at  another  a  majority,  from  the  change  of  parties, 
was  as  decidedly  the  other  way.  Virginia,  in  1610,  thought  that 
tho  Siipi-erae  ('oiirt  wa»  the  common  arbiter;  in  1829  she  thought 
differently.'  What,  then,  is  to  become  of  the  Conatitation,  if 
its  powers  are  thua  perpetually  to  he  the  eubject  of  dcboUi  aud 
controver»y  ?  What  exposition  is  to  be  allowed  to  bo  of  authority  ? 
1b  the  exposition  of  one  State  to  be  uf  authority  tlicre,  an<l  thv 
reverse  to  bo  of  authority  in  a  ocighboriug  Htate  cutcrtainiiig  an 
oppciflite  exiioBUion?  llivn  there  would  be  at  no  tinio  in  tlic 
United  States  tlie  some  Confttitution  in  operation  over  Uie  whole 
people.  Is  a  power  which  is  doubted  or  denied  by  a  single  State 
to  be  suspended  cither  wholly  or  in  that  State  ?  Then  the  Con* 
stitution  ia  practically  gone,  as  a  uniform  system,  or,  i,ndoe(),  aa 
any  syntcm  ot  all,  at  the  pleasure  of  any  State.  If  the  power  to 
nullify  the  Constitution  exists  in  a  single  Htote,  it  may  rightfully 
exercise  it  at  its  pleasnre.  Wouid  not  this  lie  a  far  more  dan- 
geruuK  and  mischievous  power  than  a  [Miwer  granted  by  alt  ^e 
Htatcs  to  tho  judiciary  to  congtme  the  Constitution?  AVoold 
not  a  trihimal,  appointed  under  tho  authority  of  nil,  be  more 
aafe  than  twenty-four  tribunals,  acting  at  their  own  pleaiuirn,  and 
upon  no  common  principles  and  co-operation  t  Suppose  Coitgreu 
should  declare  war;  shall  one  State  have  power  to  suspend  it? 
Suppose  Congress  should  make  peace;  shall  one  State  hai-e  power 
to  involve  the  whole  country  in  war  f  Sn|q>OBe  the  Preaident  and 
Senate  should  make  a  treaty ;  shall  one  State  declare  it  a  nullity, 
or  aubject  tho  whole  country  to  reprisals  for  refuaing  to  obey  it? 
Yet^  if  every  State  may  for  itaelf  judge  of  its  obligations  under 
the  Cons t i  tut i (HI,  it  may  disobey  a  particular  law  or  treaty,  be- 
cause it  may  deem  it  an  unconstitutional  exorcise  of  powerj  al- 
thuu^  every  uther  State  eball  concur  in  a  contrary  opinion. 
Suppose  Congress  should  lay  a  tax  upon  imports  burdensome  to 
a  particular  Stale,  or  for  purjMses  which  such  State  deems  uncon- 
stitDtional,  and  yet  all  tho  otJier  States  arc  in  its  fa^-or;  is  tlio 
law  laying  the  tax  to  become  a  nullity  ?  That  would  be  to  allow 
one  State  to  withdraw  a  power  from  tlio  Union  which  was  given 
by  the  peuple  of  all  the  States.  That  would  Iw  to  make  the  gen- 
eral guverumont  the  eenrant  of  twenty-four  maatere  of  different 
wills  and  different  purposes,  and  yot  bound  to  obey  them  all* 

>  IHiio'*  App.  H<<>*I'.  I>P-  MtoGS,  JM,  p.  0«;  4  ClUofa Dolata,  83S.  Sit. 
*  WtUMt't  S|>twhM,  ISO  ;  1  KlUet'aUvUtcfc  CJ*. 


CD.  IV.] 


FIKIL  INTCBPBETBB 


S8« 


S  381.  Tbe  ailment,  therefore,  arising  from  a  powtibilitr 
of  an  abuse  of  power,  ik,  to  ftay  th«  least  of  it,  quite  aa  strong 
the  other  waj.  The  Constitution  is  in  quite  as  ]>eriloits  n  state 
from  the  power  of  overthrowing  it  lodged  in  erery  State  in  the 
Union,  as  it  can  he  hy  its  being  lodged  in  any  department  of  the 
federal  goverDment  There  is  thin  differences,  howerer,  id 
the  caaes,  that  if  there  be  federal  usurpation,  it  may  be  checked 
by  the  (woptc  of  nil  the  Stutf.'s  in  a  coustitutionat  way.  If  there 
be  uaurpatioQ  by  a  Dingle  State,  it  is,  upon  the  theorj'  we  are  i 
confiidtTinfr.  irrcnit.>diublo.  Other  diilieulties,  however,  attend 
the  reaiHtmug  we  are  cutntidorin^.  When  it  is  said  that  the  de- 
cision of  the  Supromo  Courf  ia  the  laat  rcMOrt  is  obligatory  and 
fiual  "in  rektioii  to  the  authorities  of  the  other  di-]uiH rui-ut«  of 
th«  government,"  ia  it  meant  of  the  foderul  go\-vrament  oi]ly,  or 
of  tlic  Status  also !  If  of  tlie  former  only,  tlicn  the  Constitution 
Is  uo  longer  the  supreme  law  of  the  land,  nltlioiigli  all  Uic  State 
functionaries  are  bound  by  an  oath  to  eup^iort  it.  If  of  tbe  latter  i 
also,  then  it  is  obligatory  upon  the  State  legislatures,  executirce,  < 
and  judieiaries.  It  binds  them;  and  yet  it  does  not  bind  the 
people  erf  the  States,  or  the  Stales  in  their  sovereign  capacity. 
"Die  States  may  maintain  one  construction  of  it,  and  tJic  fono-'j 
taoDariea  of  the  State  are  bound  by  another.  If,  on  the  other 
hand,  llic  State  functionaries  are  to  follow  the  construction  oC 
Uie  State  In  opposition  to  the  oonstnictinn  of  the  Supreme  Court, 
then  the  Constitution,  as  actually  ndminicitercd  by  the  different 
functionaries,  is  different ;  and  the  duties  required  of  them  may 
be  oppoitito  and  in  »>lliaion  with  oach  other.  U  such  a  stute  of 
things  is  the  }iiftt  rcault  of  the  reasoning,  may  it  not  justly  bo 
suspected  that  the  reasoning  itself  is  unsound? 

§  382.  Again,  it  is  a  part  uf  this  argument  Ihat  the  jtidieial 
interpretation  is  not  binding** in  relation  to  the  rights  of  the 
parties  to  the  constitutional  compact."  ''On  any  other  byitotbe' 
sis  the  dolegatiuu  of  judicial  power  would  annul  tlie  autiiurity 
delegating  it."  Who,  then,  ore  Uic  parties  to  tliis  contract t 
Who  did  delegate  tbo  jmlicinl  iw)wer*  Let  the  iustmment  an- 
swer for  itself.  The  peoj)lo  of  tbe  L'nited  Statee  are  the  pai'tics  . 
to  the  Constitution.  The  people  of  the  United  States  delected 
the  judicial  jmwer.  It  was  not  a  delfgatiou  by  tlin  ]>eoplo  of  one 
State,  but  by  the  people  of  alt  the  States  Why,  then,  is  nut  a 
judicial  deeision  binding  in  oach  State,  until  all  who  delegated 


SSI 


CONSTITUTIOK   OF  THE  UKITBll  STATE*.  [BOOK  in. 


tho  power  in  Aomo  coiuititutioDal  maimer  concur  in  annuUing  or 
OTeiTuling:  the  decision  ?  Where  sluill  we  find  the  cluuse  which 
give*  tlie  power  to  each  State  to  conatrue  thi-  Conalitution  for  all, 
and  thus  of  itself  to  supersede  in  its  own  faror  the  constnictloo 
of  all  the  rest  ?  Would  not  this  be  justlj  deemed  a  delofiration 
of  judicial  power  which  would  annul  tho  authority  ddcuating 
it  * '  Since  the  whole  people  of  the  United  States  have  concurrwi 
in  establishing  the  Constitution,  it  would  seem  must  consonant 
■with  reason  to  presume,  in  the  absence  of  all  contnir}-  stlpulo* 
tiona,  that  they  did  not  mean  that  its  obligatory  force  should 
depend  upon  the  dictate  or  opinion  of  any  siu);lc  State.  Even 
imdcr  the  confederation,  a«  ha»  been  already  stated,  it  was  unan- 
imously rc)H>l\x-d  by  Congrcas  that  "aa  State  Ic^islaturca  arc  not 
competent  to  the  making  of  such  eompocts  or  treaties  [witli  for- 
eign states],  $0  neither  are  they  eompetent  in  tJtat  mpaciltf  ui*- 
thoritative}y  to  decide  on  or  ascertain  tho  ceiistniction  and  sense 
uf  them."  And  Uio  reasoning  by  whii'h  this  opinion  is  supported 
seems  absolutely  uiiaiiswerable.'  If  this  was  true  under  such  aa 
,  instrument,  and  that  construction  was  avowed  before  Ihe  whole 
'American  jieople  and  brouglit  home  to  the  knowledge  of  the  State 
legislatures,  how  ean  wc  avoid  the  inference  that  under  the  Con- 
stitution, where  un  ex])ress  judicial  puwer  in  cases  arising  under 
the  CouBtitutiou  was  provided  for,  the  people  must  have  under- 
stood and  intended  that  the  States  should  have  uo  right  to  ques- 
tion or  control  8uch  judicial  interpretation  t 

§  883.  In  the  ne.tt  jilaee,  as  the  judicial  power  extends  to  all 
casea  arising  under  tlie  Constitution,  and  that  Constitution  is 
declared  to  be  the  snpreme  law,  that  supremacy  would  naturally 
be  constnied  to  extend  not  only  over  the  cititens,  but  over  the 
States.'  Thin,  however,  is  not  left  to  im|)licatinn,  for  it  is  de- 
clared to  t)e  the  supreme  law  of  the  land,  **  anything  in  the  Con- 
stitution or  laws  of  any  State  to  tho  contrary  notwithstanding." 
Tho  pi-oplo  of  any  State  cannot,  then,  by  any  alteration  of  tlieir 
Stato  constitution,  destroy  or  impair  that  supremacy.      How, 

■  Tim*  U  Tiut  bTM  In  tho  nuoning  at  Mr.  Wetnter  ott  Uib  MlitMn,  in  hfa  grau 
•pcwk  ««i  Mr.  Fixit'*  nMluticou  in  tlu  Sanata,  In  ISSO,  wUil)  mD  diwrrw  tlw  atttn- 
tioo  of  eirtnr  slataMnu  ud  Jariat.  Sn  i  BUiot's  IMataii,  33S,  S39.  Mi,  Sl(,  and 
Vabrtcf'*  SpcMho),  pp.  407.  408,  41«,  419.  490 :  Id.  p|>.  430,  iSl,  432. 

*  Joaniali  ef  OsttgrM,  April  13,  1*67,  p.  i%,tK.  Ila«l«ga  theOoMtitaUoii,  App. 
8,  f.  81S.  ka. 

*  Tbe  F«den]i*l,  Ko.  38. 


CH.  IV.] 


FINAL  tNTBSPnCTER. 


286 


then,  can  they  do  it  in  anj  other  leaR  direct  manner?  Now,  it 
is  the  proper  function  of  the  judicial  department  to  interpret 
laVH,  and  by  the  very  terms  of  the  Con«titutiou  to  interpret  the 
supreme  law.  Ita  interpretation,  then,  becomes  obligatory  and 
coDcluaire  upon  all  the  dc|iartnicntfl  of  the  Federal  goremnient, 
and  upon  the  whole  people,  ho  far  as  their  riglita  and  dutiett  are 
dcrired  from  or  affected  by  that  Constitution.  If,  then,  all  the 
departments  of  the  national  government  may  rightfully  exorciao 
all  the  powers  which  the  judicial  department  has,  by  its  intor- 
pretatEon,  declared  to  be  granted  by  the  Constitution,  and  are 
proliiltited  from  exercising  tho8«  which  arc  thus  declared  not  to 
be  grantod  by  it,  wotiM  it  not  be  a  solecism  to  hold,  notwith- 
standing, tJiat  finch  rightful  exercise  should  not  bo  deemed  tho 
supreme  law  of  the  land,  and  audi  |>rohil>ited  powers  should  still 
be  deemed  granted  !  It  would  seem  repugnant  to  the  first  no* 
tions  of  jtmiiRp,  that  in  resjiect  to  the  same  inatrament  of  govern- 
ment difl'erent  jmwers  and  duties  and  obtigationa  ahould  arise, 
and  different  rules  should  prevail,  at  the  same  time,  among  the 

?  governed,  from  a  right  <rf  interpreting  the  same  words  (mani- 
festly used  in  one  sense  only)  in  different^  nay,  in  opposite 
Bensea.  If  there  ever  was  a  case  in  which  uniformity  of  inter* 
pretation  might  well  be  deemed  a  necessary  (wstulate,  it  would 
seem  to  be  that  of  a  fundamental  law  of  a  government  It 
might  otherwise  follow  tiiat  the  same  individual,  as  a  magis- 
trate,  might  i>c  boimd  by  one  rule,  and  in  his  pri^'ate  capacity  by 
another,  at  the  very  same  moment. 

§  884.    There  would  be  neither  wimlom  nor  policy  in  such  a 
doctrine;  and  It  would  deliver  over  the  Constitntion  to  intor- 

>  minable  douhta,  foundnl  npon  the  fluctuating  opinions  and  char- 
acters of  those  who  should  from  time  to  time  bo  called  to 
administer  it  Such  a  Constitution  could  in  no  just  scnsv  bo 
deemed  a  law,  much  less  a  supreme  or  fundamental  law.  It 
wonld  have  none  of  the  ec-rtainty  or  universality  which  arc  tlio 
proper  attributes  of  such  a  sovereign  rule.  It  would  cntuil  npon 
na  all  th<>  miserable  servitude  which  Iius  been  deprecated  ns  tbo , 
result  of  vague  and  imccrtain  juris]>nidenee.  Mitera  ett  e^n't'ttia, ' 
ubijju  «tt  voffum  aut  tiuxrhtm.  It  would  subject  us  to  constant 
discussi'ins,  and  |K-rhti|M  to  civil  broils,  from  the  [M.'rpvlually 
recurring  contlicls  upon  const i tut iuual  questiuns.  On  the  other 
hand,  the  worst  that  could  happen  from  a  wrong  decision  of  the 


286 


CONSTITtn'ION  OP  THB   OKITBD  STATES.  [BOOR  HI. 


judicial  dcputmcot  would  be  that  it  might  require  the  intcrpo- 
sition  of  Congrtss,  or,  in  the  Itat  report,  of  th«  amendatorj* 
power  of  the  Stntt'*,  tu  redrens  the  |ri'ie\'8nce. 

§  885.  We  fiod  the  power  to  contitnie  the  Constitution  ex- 
press!}' conlided  to  the  judicial  department^  witJioiit  any  limita- 
tion or  ({ualificntion  an  to  its  conclusi rentes.  Who,  tJion,  is  nt 
liberty,  by  geoei'al  imjtlications,  not  from  the  teriiui  of  the  in- 
stmmont,  but  from  mere  thoory  and  asHumed  reHervationa  of  sov- 
ereign right,  to  inAert  Buch  a  limitation  or  qualification  ?  We 
6nd,  that  to  produce  uniformity  of  interpretation,  and  to  proservo 
/  the  Constitution  aa  a  perpetual  bond  of  uoiun,  a  supremo  arbiter 
'  or  authority  of  construing  in,  if  not  absolutely  indispensable,  at 
least  of  the  highest  possiblu  practical  utility  and  importance. 
I  Who,  tben,  is  at  liberty  to  rcnson  down  the  terms  of  the  Cunstl- 
(ution,  to  as  to  oxcltule  their  natural  force  und  opcratiuu  f 

§  386.  We  find  that  it  is  the  kno«-n  courBe  of  the  judicial  de- 
partment of  the  several  States  to  decide  in  the  last  ivsort  upon 
b11  constitutional  questions  arising  in  judgment;  ami  that  this 
has  always  t)oen  maintained  as  a  rightful  exercise  of  authority, 
and  conclusive  upon  the  whole  State.'  As  auch,  it  has  been 
constantly  approved  by  the  people,  and  never  withdrawn  from 
the  courts  by  any  amendment  of  their  eonstitiitiou^,  when  the 
people  have  been  callH  to  revise  tliem.  We  find  that  the  people 
of  the  aereral  States  have  constantly  relied  npon  this  last  judi- 
cial appeal  aa  the  bulwark  of  their  Htate  rights  and  iibfrties; 
and  that  it  is  in  perfect  consonance  with  the  whole  stmctore  of 
the  juriaprudence  of  the  common  law.  Under  such  circuin- 
stanc4?H  is  it  not  most  natural  to  presume  that  the  same  rule  was 
intended  to  be  applied  to  the  Constitution  of  the  United  ii^Cates? 
And  niien  we  tind  that  the  judicial  department  of  the  United 
States  is  actually  intrusted  with  a  like  ]>ower,  is  it  »ot  an  Irre- 
sistible presumption  that  it  had  the  same  object,  and  was  to  have 
the  same  unireraally  conclusive  effeot  ?  Even  under  the  «-OQfed- 
oration,  an  inatniment  framed  with  infinitely  more  jealousy  and 
defercneo  for  Stato  rights,  the  judgments  of  the  judicial  depart* 
mcnt  appointed  to  decide  controversies  between  >!tatc«  were  de- 
clared to  bo  final  and  conclusive;  and  the  appellate  power  in 

>  8  HIlM-.  Drhati^  S«8,  SM,  8W.  8C5  i  OrimWt  SpMcl)  in  1628,  |^  SB.  fte  i 
DiLM'a  App.  If  H  <^  P  n  to  EH ;  U.  14$.  [>.<>. 


CH.  IV.] 


PCIAL  nttERPBETBB. 


287 


other  cases  Ta«  held  to  ovomilo  all  State  dociaioiM  and  State 
legislation. ' 

$  887.  If,  th«n,  reasooinK  from  tlic  termn  of  tho  Comititution 
and  the  known  principien  of  our  jiirisprudence,  the  appropriate 
conclusion  is  that  the  judicial  depKrtuient  of  the  United  Stateg 
ia,  in  tbo  last  roaort,  Uie  final  expositor  of  the  Constitntion  ta  to 
all  quotttions  of  a  judicial  nature,  let  us  ij««,  in  the  next  place, 
how  fur  this  rcaitoning  acquires  conlirnution  from  the  past  bis* 
tory  of  the  Constitution  and  the  practice  under  it 

§  888.  That  thia  view  of  the  ('onntitution  was  taken  hy  its 
framers  and  friends,  and  was  fiubmitted  to  Uie  people  lK>fnre  it« 
adoption,  is  positively  certain.  The  Federalist'  says,  "Under 
the  national  government,  treaties  and  articlea  of  treaties,  as  well 
as  the  law  of  nations,  will  always  i>o  expounded  in  one  seniie 
and  executed  in  the  sarae  manner;  whereas  adjudications  on 
the  same  points  and  qoestionn  in  thirteen  States,  or  three  or  four 
confederacies,  will  not  always  accord  or  be  consistent;  and  that 
as  well  from  the  variety  of  inde]>eudent  courts  and  jiidjfos  ap- 
pointed  by  different  and  independent  goremments  as  from  the 
different  local  laws,  which  may  affect  and  influence  them.  The 
wisdom  of  tlic  convention  in  r^nnmitting  8uch  questions  to  the 
juriBdiction  and  judgment  of  courts  appointed  by,  and  responsi- 
ble only  to,  one  national  government,  cannot  be  too  much  com- 
mended." Again,  refcrrin};  tu  thu  objection  taken,  that  the 
government  was  national,  and  not  a  confederacy  of  surereign 
States,  and  after  stating  that  the  jurisdiction  of  the  national 
government  extended  to  certuiu  enumerated  objects  only,  and  Icfl 
the  residue  to  the  several  States,  it  proceeds  to  say  :*  "  It  is  true, 
that  in  controversies  between  the  two  jurisdictions  (State  and 
national)  the  tribtmal  tefuch  t«  nltimaUlg  to  decide  is  to  be  es- 
tablished unde^  tlie  general  government  Bui  this  does  not 
chaoge  tlio  principle  of  the  case.  The  decision  is  to  be  impar- 
tially made  according  to  tlie  nile*  of  the  Constitution,  and  all  the 
usual  and  most  effectual  precautions  are  taken  to  secure  this  im- 
partiality. Some  sueJ)  tribunal  is  clearly  essential  to  prevent  on 
appeal  to  the  sword  and  a  dissolution  of  the  compact.  And  that 
it  ought  to  \k  established  under  the  general  rather  than  under 

t  tUae'i  Api'- 1  5S,  TL  M ;  FVolullow  k  D«mm^  S  Dill.  54 ;  JMmMb  of  Omsftm, 
1TT9,  Vol.  S,  pp.  goto  90  E  i  CViaeh,  S. 


288 


CONSTITDTIOK   OP  THE  UKITED  STATIft.  [UOOK  lit. 


the  local  f^veramcnts,  or,  to  speak  more  properly,  that  it  could 
be  safely  entabliahed  under  the  Bnt  alone,  ifi  a  potsition  not  likely 
to  be  combuti-d. "  * 

§  889.  The  subject  is  still  more  elaborately  considered  in  an- 
other number,'  which  treatii  of  the  judicial  department  in  rela- 
tion to  the  extent  of  it«  powers.  It  is  there  sAid,  that  there 
ought  always  to  be  a  conAtitulioiial  method  of  giving  efTieaey  to 
L constitutional  provisions;  that  if  there  are  such  things  as  jioliti- 
cal  axioms,  the  propriety  of  the  judicial  department  of  a  gov- 
ernment being  coestensiTe  with  itn  legislature  may  be  ranked 
among  the  nuni)>er;'  that  the  mere  necesaity  of  uniformity  in  tbe| 
interpretation  of  the  national  law  decides  the  (piefitiou ;  that 
thirteen  independent  courts  of  final  jurisdiction  orcr  the  same 
caunen  is  a  bydra  of  government,  from  which  nothing  but  contra- 
diction and  confusion  can  proceed;  that  controversies  between 
the  nation  and  its  memben  can  only  be  properly  referred  to  the 
national  tribunal;  that  the  peace  of  the  whole  ought  not  to  be 
left  at  the  disposal  irf  a  part;  and  that  whatever  practices  may 
wc  a  tendency  to  disturb  the  liarmouy  of  the  States  arc  proper 
objects  of  federal  superintendence  and  control.* 


1  8m  alM  n*  F«d«n1Ut,  K<k  33.  *  Hw  P«dm1M,  V«.  «. 

*  ThaauiitnnuukiwiUbetouiidpnawilwithgiwt  lorn  liyllr.  Chief  JaitioeBliw 
lOuU.in  dctirfTing  tlm  Dpniaii  ortbcoouit  in  Cohctu  v.  ViigitiM  (SVTIm*!.  Ml,  384). 

*  In  cho  F«)emlut,  Koi.  7S  ud  SX  tha  «inc  oounc  of  rwtmtnjt  1>  finnwil,  ud  tlw 
I  AimI  i»tu>«  of  tlio  »fpMaU  jvrUdiction  of  th«  Saprtnit  Conit  to  l*ilt*ly  Ia*l)>t«l  on. 
LloUieciinvaDlioiiof  ConiMOtiBut,  Ur.  RlUworth  (>ri*rwaTi)*Ch{*r  JmUm  of  Uie  United 
rBUUa)  OKd  tlie  rollowing  hogiuge  :  "Tliii  Cuiiittilatiun  drftnes  itie  extent  «f  lb* 
Ipovcn  or  the  (cnnei*]  govvrnmNit.  IT  ths  gruFnl  Irgitktarr  ibtniM  »t  an;  tJMe  cmr> 
(Imp  thMr  limltf,  the  Judicial  defiutinettt  ii  tli«  coiirtitutional  cbtclc  If  the  llDitad 
|Bt^«*gol>«youdIhdr  pow*?*,  — If  the;  make  a  lawwMch  the  Ooaitttatlan  doM  nut 

r,  it  it  void ;  and  tti«  jiiJlckl  power,  tha  nalional  Ja>If«<^  kIk^  to  aecwe  tlirir 

nptrtulily,  are  tn  be  moJo  independtiit,  a*!]}  dutkn  ii;rmd.     On  the  oUkt  hanJ,  if 

^Uie  SUUt  ito  briruQd  Ibt-'li  limlta,—  if  ibrj  make  a  iiv  whkb  ii  a  ttniqiatian  upon  Iht 

l>D«iiJ  pTnrnnrnt,  the  law  in  raid,  and  upright  and  indopendont  Jn^gM  vitl  dorUi* 

Still,  kownvN,  il  Ihn  UnittNl  riutrx  and  (Im  ladividual  SUt«*  will  i)oaml.  If  thejr 

|««nt  to  light,  ihiff  M*y  do  II,  a»d  m  tnmt  of  fjorcrniMat  oas  peouUf  pterant  it." 

I  the  debates  in  the  8oall>Can>{iiiaLqgi»lalure,,«lien  tb«  nilijeet  ol  MtUag  a  eonven. 

I  to  latifj  or  njtci  the  CoeiMhatioa  waa  before  tiicni,  He  CharlM  Vioelauy  (one  «f 

nhen  of  .the  oonTaution  |  aTond  the  dooliina  in  the  alrcaigiat  lenu     "  That 

I  anrnna  Federal  J«ri*di«tloB;wBi  iadlapMMUt,"  Mid  h^  "cannot  baihntod-    lib 

r«i{aal]r  traa,  Itet,  b  otder  10  beura  tb«  admiulitratiod  <l  Juaiioe,  it  ■»  nuMaiy  to 

g)T«  ell  the  ponr^  anginal  a*  well  la  appalbla,  the  CoiisUtution  bu  earanoMod. 

Wllboiit  it  re  cooM  not  eipe«t  a  due  otamTanM  of  tmlio,  that  tb«  State  jndidsrioa 

aid  toallM  thiMtdTM  within  tlieii  ivopsr  apbtn,  at  that  a  gniNal  aiMt  of  Jiutka 


CH.  IT.] 


prKAL  IKTERPftRBB. 


S89 


§  :ii>0.  T]ie  same  dnctrine  vraa  constantly  arowcd  in  tlie  State 
Ronv«ntioii8  called  to  ratify  the  Constitution.  With  some  persons 
it  formed  a  atrong  objection  to  tlif  Conatitution;  with  others  it 
was  deemed  vital  to  ita  cxistonev  and  valu«,'  So,  that  it  is  in- 
disputable, that  the  Constituiiou  was  adopted  under  a  full  knowl- 
ed|n)  of  this  exposition  of  its  grant  of  power  to  the  judicial 
department." 

g  891.  This  18  not  all.  The  OonBtiliition  hna  now  been  in  full 
operation  more  than  forty  years;  and  during  tliis  period  the  Su* 
preme  Court  hits  constantly  exercised  this  power  of  Rnal  inter* 
pretation  in  relation  not  only  to  Uie  Constitution  and  laws  of  tho 
Union,  hut  in  relation  to  State  acts  and  State  constitutions  and 
laws,  so  fitr  as  they  affected  the  Constitution  and  laws  and  trea- 
ties of  tJje  United  States.*  (a)     Their  decisions  upon  these  grave 

would  prrradc  th*  Union,  if.  That  to  iniUK  thtar.  cxteiujn  outhontioi  wgr*  iwcm- 
Mry ;  p*rticiilijrly  »>  wire  tliry  in  «  tclhiinnl,  L-nniiltulnl  m  thi*  in,  whnM  ilaly  It  ooalil 
tw,  liul  only  to  drtiili  atl  iiatiuuul  iiUiwtiilri*  wliich  iihoiilJ  iHm  within  thv  iriilon,  but 
tiXDntral  and  kiwp  (he  State  jiidiciuim  wlthiu  their  ptvpar  UmiU^  whenrvpr  tbry^ 
iboiiitt  attempt  to  intetftre  with  the  [nwcr."  Debotia  in  ITTS,  print«d  by  A.  E.  lliller, 
1831.  C-h«r!niton,  p.  7. 

>  It  vtmild  ticciipy  tw  KTOCh  «!*<»  toqaot*  lb*  fiw^M  »t  Iwg*.  Tik«  dn  Inttasmh 
in  the  Vii];lnk  deWte*,  Hr.  HadiMo'*  miMik* :  '  It  nmj  he  a  miifortuiiiv  that  in  iw> 
ganuing  any  Kanrnmcnt  th*  toiplicatian  of  ita  authority  (honld  b«  lift  la  any  oT  tU 
n».atdlnata  tmnchn.  Thar*  1*  no  rxamplo  iR  any  unaitrj  wh*ra  It  b  otlivrwitc  Thm 
1«  iMnvwpoUry  In  MbtaiitlBg  It  to  tlia  Judiciary  of  thcUBiml  Statra."  S  Elliot '«  Oe- 
batM.3>0.  8Mal*ola.8aOb>e8,3»9,l<K>. 401.418.  8n  alto  North  CkroUna  D«bat«a, 
8  EUtot'i  Detmti^  tlS,ISr,lSS.  130. 133.  ISt.  ISf.  Itl.  Hi.  14S;  PtHwylraaln  D». 
tetca.  S  Elliot'i  Dehatea,  ISO,  313.  ilr.  l.uthir  Mania,  io  hU  Itttir  to  tha  UafylMid 
Connnlian,  aald  :  "  By  Ihn  Ihlnl  article  tha  Juillclal  povar  U  TotUd  In  on*  SapnuM 
Court,  ae.  Thna  Murti,  and  tlute  onlf,  wlU  hava  a  ligtit  to  dKiik  upon  the  lawa  ot 
III*  UDitnl  Statn  aad  oU  TtiofiOR*  arUiiuf  tywn  IMtir  laiaJi  urftwa,  to.  Whfiher, 
theterorF,  any  lawa,  Ac.,  of  Congwra^  or  ai;ta  of  ita  Praddent,  Ac.,  an  contiary  to  or 
wamntDd  bj  ibc  l^nnlitulion,  raoa  only  with  the  judgni,  who  aro  ajipoiotod  fcjr  Oco- 
grata  (o  ibtmniiia ;  V  iticm  iMrmf aafiou  tvery  SlaU  (m  toundT  S  ElUofa  IXtbatea^ 
44,  (5 :  Vatea'a  Hiavtm.  ke.      8n  alao  th«  Fadmliat,  No.  7S. 

>  Sm  Mr.  PiDckiwy'i  Obicmitions  cited  in  Griakj'a  Sp«Mli  in  18SS,  pp.  SB,  S?. 
■  Dane*  App.  J  41,  pp.  &3,  04,  S^ ;  Giimk^'i  Speech,  U»,  pp.  M  Io  42. 


(a)  In  thi*  dbmrfoM  It  ia  pminnl,  of 
oonrw.that  thaqoaitioai  arimig  under  the 
ConxllUtJan  ha*  In  aoaw  form  boconw  tha 
anhjac*  of  Judicial  cuntmrany,  ao  aa  to  bo 
brooght  lo  the  notin  al  ihe  (OOTt  in  ■  maa- 
wrtodBniand  ilajndgmcnt.  The  court  dots 
not  ait  to  dn-larc  prtnclpUa  of  liw  cxocpt 
aa  Ihny  artM  in  actnit  llUfadoo ;  tl  miut 
VOL.  I.  —  IS 


hnva  authority  undrr  thv  law  to  adjuilioata 
npon  aoma  auhject-mattOT  ia  i«ganl  ta 
whkk  •  Mfltravcny  lua  aiiata  baloi*  It  b 
wanutrd  In  Uylng  down  mla«  which  an 
Io  KOTvm  any  mt  in  tha  eMMtradian  of 
the  ConttilntiiMi  or  of  asy  other  law.  It 
U,  therrfera,  ^nitc  pootUa  that  qusKon* 
«r  toaatitaUona]  law  may  for  a  long  period 


290 


CON'STITCTIOK   OP  THE  ONlrBD  BTATE9.  [BOOK  HI. 


qacslioDS  have  nerer  been  repiidiatcd  or  impaired  hy  Congress.* 
No  State  baa  ever  delibenitelj  or  forcibly  reaiiited  tbe  execution 
of  the  judgments  fouudcd  upon  thvm;  and  t])e  bi^ht^l  State 
tribunals  have,  witb  scarcclj^  a  single  cxccpticHi,  acquiesced  in 
and,  in  most  inBtuoccs,  asuistvd  in  executing  tbcnt.^  Durinf; 
the  same  period,  cloven  StntcB  huvo  been  admitted  into  tJie 
Union,  under  a  full  pcrsufMiuu  tbut  the  ftomo  power  would  be  ex- 
erted over  them.  Mouy  of  the  States  have,  at  different  timra 
within  the  same  pcriud,  been  called  u|>on  to  consider  nnd  cxum- 
ine  (he  grounds  on  which  tbe  doctrine  has  been  maiutuined,  at 
the  solicitation  of  otJier  HtAtes,  which  felt  that  it  opi-ratud  in- 
juriously,  or  might  opernte  injuriously,  upon  their  interest*.  A 
t^eat  majority  of  tbe  States  which  hare  been  thus  called  upon  in 


■  la  the  dobatoa  Jn  the  fint  Congrea  oisuiitcd  under  Iho  Oonititntlon,  th*  : 
doctrini  vna  opontjr  ivownl,  u  iniUril  it  biu  cniuUiitljr  bam  hj  Um  nkJoHtj  of  Con- 
gma  mt  all  auliMiiasiit  inriod*.  Sm  I  Uaji't  DaUtat,  SIB  U  S90 ;  S  Uoyd'a  D*- 
baUi^  391  to  S!7. 

*  Chi«f  Ju«Ua»U*Ktw>.  b  Cotninonwolih  «.  Cobbctt  (S  Dall.  (i3|,  leciiuiohBTS 
adopted  »  modified  doctrine^  and  to  liars  held  thai  tb*  Supreme  Court  wu  not  tbe  oeaa- 
■nan  arbiter ;  hut  if  not,  Ihci  only  mnndj  wm,  not  by  a  &t*t«  deciding  for  UioK,  u  In 
rjuMi  of  a  treaty  b*lwr«n  iadvpnidtDl  gartwamentt,  but  by  a  cuiiHttuitlaiial  MiuindowBt 
by  thr  Stntw.  But  ner,  on  ti»  otfanr  ha»d,  th«  opiiiica  of  Chief  Jtutka  Spaaow,  ia 
Andnwi  v.  Montgnuerj;  10  JoJina.  EL  114. 


■WTtr  ba  brooRht  tu  th*  a-iMe*  of  Uio  mmrt 
In  a  form  to  justify  tli«  exprewiou  of  ib 
opinion  ;  and  a  pncticol  «ni>lraction  nay 
ciimi)  ta  Iv  unttlcd  by  the  Bcttan  of  tha 
■>ttirr  ilninttiiii'iiU  of  (111'  |[0Tar)tmH>t, 
wblcb  it  would  iMdlllii'iilt  and  iiilacbWroua 
aft«wtlda  to  disturb.  Indwd,  ■■  Ilia 
i»l^n*l  jariklietian  of  the  SapKoae  Court 
L*  llinilril,  and  tha  afipellatc  i*  by  th* 
ConiKtutiou  Ncprcoly  oonrMTfl,  "with 
tuL'h  (ii;rplian»  oad  undar  such  ngulaliona 
a«  theCongmi  dull  pmoibe  "  (SxpaiU 
VtJ^T.  t  VTilL  M;  Th«  Lney,  Id.  SOT), 
It  hat  bMn  fannd  poonblaby  tlkat  body.  In 
a  ca*r  in  whMi  a  ibddM  e«  a  quaUloa  et 
foiulitnllonal  povar  ma  thoogtit  not  i^ 
•fttUe,  and  «h«r«  Ma  <)ac«ian  eonld  only 
art**  on  apfual,  to  pM«faid«  a  dMialan  by 
takiag  away  tlia  ap^Uata  Jurlalletloa. 
Thu  wu  done  in  UiH^nll*'a  Oate.  7  Walt. 
tot,  after  tbo  apfcal  had  bnn  taken  ;  tbe 
fwatjon  tnrolTnl  being  tha  «OM«tItatioii> 


allly  of  lh«  RcaonitneUon  Ada,  aaoallad. 
or  thn  proprkty  of  Boch  action  va  tay 
Mothinghera. 

The  fodctal  eonHa  kav*  aim  hdd  that 
tlMogh  th«y  insy  compri  the  prttonKum 
«l  MCi«  minbterial  duties  by  an  oSev  of 
the  tinited  Stalaa  (Uarbory  e.  Uaduon,  1 
Cnofh.  137 ;  KewUU  ir.  raitod  Statea,  Ifl 
Pet.  SM ;  Oaltad  StalM  c  Oothritv  17 
Hob.  SSI),  yat  they  Lire  no  power  (q 
iatecftn,  t«  leqaira  Uie  perfeinuvM  of 
ptrdy  politju)  dutiee,  or  to  laatnin  <a 
ooDtRil  tbe  fncntlra  jn  Ilia  oMMiM  of  dif 
crationary  powm.  The  allrgattoa  tbat 
be  ia  prooeading  to  put  in  fnm  *a  uacaa- 
•dtntkoal  taw  do**  not  gin  a  court  a 
JniltdkllMi  to  bitarfofe.  lIlMlaaippl  v, 
Jolimon,  4  Wall.  47S.  Tha  lam  in  <iaaa- 
tka  hata  won  ahn  the  SMMiUncliaii 
Acta.  $*•  alM  OMirgU  m.  Siantoa,  0 
WalLSL    a 


nXAL  INTERPRCTCB. 


an 


thoir  Ivf^islatiro  capacitivs  to  oxprt-ra  opinioiu  havfi  maiDtaincd 
the  corrc«liKMis  of  the  doctrine,  uiitl  tLv  bviiuficittl  effects  of  the 
powor,  as  a  bond  of  union,  in  U^nn»  of  t1i«  n)0«t  uneqiiivocjil 
untura'  Whenever  nriy  nmcHdmcrit  has  been  ]ir(>po«ed  toohangu 
the  tribunal  and  eubstittite  another  common  umpire  or  interpre- 
ter, it  hiiH  rarely  rceeivcd  the  concurrence  of  more  tlian  two  or 
three  States,  an<i  has  been  uniformly'  rejected  by  a  preot  iiinjor- 
ity,  either  silently  or  by  an  exjireujiltfiOt-  And  infltances  have 
occurred  in  which  the  legislature  of  the  imme  State  hoR,  at  differ- 
ent timen,  avowed  opposite  opinions,  approving  at  one  time  what 
it  had  denied,  or  at  least  quentioncd,  at  another.  So  tliat  it 
may  be  aii«ert«l  with  entire  confidence,  that  (or  forty  years  tbrcc- 
fourthfl  of  all  the  Stated  c«mpoaing  the  Union  have  expressly 
assented  to  or  silently  approved  this  construction  of  tlic  Consti- 
tution, and  have  rt-Hiitted  every  effort  to  rc-Ktrict  or  alter  it.  A 
weight  of  public  opinion  among  the  [teoplo  for  ttuch  a  period, 
uniformly  thrown  into  one  seRlo  so  strongly  and  so  decisively, 
in  the  midst  of  all  the  extruordiuary  changes  of  parties,  the 
cvouts  of  peace  and  of  war,  and  tbc  trying  conflicts  of  public 
policy  and  Stale  interests,  is  perhaps  unexampled  in  the  history 
of  all  other  free  governments.'    It  affords  as  satisfactory  a  testi- 


I 


■  Hiaachiutrtu.  in  brr  lUwlTe  of  Fobnuiiy  1SL  ITM  (p.  ST|.  in  aiinria  to  tb* 
Roulnliotti  e<  VirgjnUof  ITUv  ■1'^'*^  "tliu  tkedcduon  oT  all  ouea  in  biw  imi 
*^vi\f,  aitilBR  niKliT  UiD  OoMtlnnloii  «f  tlu  Unitod  8ut«i,nnd  l!w  ranatnicllan  of  «U 
Uw«  in*i1*  In  puritakn«c  thcmof,  >n>  utcliulTaly  TMtnl  by  llie  )<to[Jv  lii  IIkf  Jndidil 
OMut  ot  UiB  Unilffl  Suit* ; "  >ii4  "  lliat  lh»  pnopU  In  lliat  itolcmii  nniiart,  which  i« 
iImIiii  iI  to  he  tbc  nipmnB  law  of  tlie  UiiJ.  haw  not  cunslitiitTil  tlir  Stat«  Ipgi^lilum 
Ibc  iaigt*  of  tb«  Oct!  or  mBMariM  of  llio  I'tdcral  {^rmniffit,  but  havr  oon&dtA  to 
ibnn  til*  povw  at  proiMtng  Midi  ■mwidinwiti."  Ae> ;  nnd  "  Ibnt  bf  tUi  eonitrucilon 
of  Ui*  Contlitnikn  an  «nUlaUo  and  dlnpaatlaMto  nmeiy  i*  p»ldl«d  out  for  aiif  vvU 
vlikii  MEptripooe  tnay  prov*  (o  litt,  wiil  th*  [i«*MUid  prMf-rily  of  th«  I'nilcd  Stata* 
may  bo  praemd  without  Inlcmptkni."  Sm  alto  l>iae'«  Api<.  J  (1,  |l  SS  g  M.  60. 
Mr.  Wcbitf r'a  Spcvch  In  the  Smate,  in  1636,  coataina  an  admiraUa  fipoutian  of  lb* 
■ODO  doctrlBtiL  Wcbairr'*  8[»«rh«,  «li\  419.  ISO,  «SI.  In  Jane,  Itti,  tlx  Honao 
of  RapraaratatlTn  of  X«w  Ilunpuliln  ptMod  cerujn  rtwIntloA)  ( 1  n  yma  to  9  My*), 
draw*  tip  (■■  fa  tiadmtoad)  by  «atr  of  h«r  Mott  diaUnfntahoil  8tatNiD«i^  ataertiag  th« 
MDiNi  iloctriiira.  OtUwarf,  in  Juurr,  1S31.  Mkd  Connectieut  and  MMMehnaett*  h«U 
tiw  maiT.  in  Mar.  l$4t. 

■  TirKlnia  and  Rtaitacky  dpaicd  tbapowrr  In  17H  and  ISOO;  M)ut«*chnMiU«^  Dvla. 
van,  Rhsd*  UUnd,  Krw  York,  ConMCttcnt,  N*w  B>BiriK>iir«,  an<l  Vrnuont  dinjb 
jmrtd  «(  tba  TiixieU  Riaolatbna,  and  pawtd  OMntprmolutionB.  (North  Ancrkan 
BavU*.  Oetobw,  1 830,  p.  GOO).  Ko  othn  Sutc  apfeare  to  bT«  Bpf««t«d  the  Vii]ginia 
Baadntiona.  (IMiI.)  In  ISIO  I'fDiiBylTaaia  propooed  the  qipointmcait  of  anotftcr  tri* 
banal  tlma  the  Suprrme  Court  to  deCcnnioe  diapnlea  bctwMC  Um  gmoal  and  Stat*  («*• 


OTSSTrrunox  of  the  mnva>  statzs.        [book  in. 

monj-  in  favor  of  the  just  and  safe  o]H-riitioD  of  llic  sygtoiii  a*  can 
well  be  imagined;  and,  as  a  conunt-ntary  upon  tlie  Conatitiitioii 
itself,  it  is  as  absohitvl}-  conclusirc  «g  any  ever  can  be,  and 
affords  tho  only  vscu[)e  from  the  occtirrcnoe  of  civil  conflicts, 
aud  tlic  duUvcry  over  of  tlic  subject  to  interminable  diBputev.' 


f  mment*.  Tlrginla,  en  t1i«t  occuioii,  tfflnnod  that  the  Sotnvmc  Court  wm  tlio  |iroptr 
tribiuU ;  uid  in  tLal  vplnlrtn  Vcw  Haiii|i«lili«,  Vtrniaiit,  North  C«roliiu,  UatjUnd, 
GcoiBM.  TcuneBce,  KFiituckj-,  nuil  N«w  iem-y  concum*! ;  uid  no  on*  Slal«  ki>f««T«d 
or  the  oDwndtnvnt  (Kofth  iniirican  R«(icw.  OftolKr,  IMD,  pp.  £07  to  S13 ;  Dxii't 
App.  §  ii.  p.  67  ;  0  \^'bciil.  H.  Sii,  note),  Bcerutly,  in  Mmh,  1S31,  Fniuaylruilk 
hu  Tsaalnil  that  ihv  inh  iwiiDn  o(  the  jiiditiiiry  act  of  1>81I,  «L.  20,  uhich  givn  tlie 
8npr«tnu  Court  Rpiirll.AU  JnrUdktlon  rrom  State  courti  on  conttitutionul  quotioni,  b 
uutliuriziil  by  tlii.'  C<ii»tltiiliuii  *n<l  8iini;tl(iniul  Vij  (^xjinience,  uiiJ  tlio  all  other  Uwi 
ompowpring  tliv  Kisl«ril  Judiciary  [o  ni»<Litiiiii  tliu  iiiipniinii  law*. 

>  UpoD  thu  rabject  the  »pr«h  of  Mr.  Welslcr  in  Ibo  SciMtc^  in  Itlt);  prcanits  the 
who1«  argumont  tii  a  rtry  cundrniM^d  an4  poK-irfuI  ftom.  Tha  followinn  JxaMft*  I* 
adiKtod  ta  iwculiarly  ipproprliitB  ;  "Th»  itfoptc,  Ihin,  air,  orrcUd  tlib  (COvminwnL 
Tb«y  giiTa  it  a  Cooatitution.  and  in  Ihul  Cooitilutioa  lliuy  havn  enuinerat«d  tti«  [mirtn 
which  thay  bcxlcn*  on  it.  Ilicy  lun  made  it  ■  limited  gaTenunea^  Th»f  ham  da- 
Bntd  ila  authority.  Tboy  have  rwtimliMd  it  to  tlu  (XoriiM  of  inch  farmtn  m  an 
gnn1«d  i  and  all  nthcn,  ikcj  d«c]ar«,  wo  itMrrod  to  tha  Statai  <«  tho  pcovK  Bat, 
til,  thoy  hurt-  not  (topped  here.  It  thvy  had,  th«y  won]J  h«v«  Muonitdiahf^  hut  lalf 
thrir  «Drk.  No  dcRcitiMi  aui  be  aa  clmr  aa  Co  avoid  poasitnlity  ot  doubt ;  no  limita- 
tion M  pnviw  ai  Ui  exHndo  all  nnrartalntj.  Who,  than,  thall  oonalnia  lUs  RnittM 
tiM  |iKi)ik>  I  Wlio  ttiiill  iiiu-rprpl  thiur  vUl,  wh«>ti  It  may  bo  iniijuaad  tfcfy  tiavo  Ufl  it 
donbtTul  1  With  nbnm  du  Ihry  njxMe  tliia  utliinxtf  light  of  deriding  on  the  poBfni 
«f  tbc  gotcmmcut  I  Sir,  tliry  have  irlllcd  all  Ihis  in  the  fuUatt  muiMr.  Ttuj  hava 
loft  tt  with  thi!  £ovcnini<?ut  iiaclf,  la  its  appropriate  brandiM.  Kr,  tha  verr  ehitt  end, 
th«  main  dmiKn,  for  whkh  the  whok  Canititntion  vaafimmod  and  adofitnl,  wai  to  ea> 
tabliib  a  guvfnriuKUt  Umt  should  not  b«  oUIkr)  to  avl  tliroiigh  Slate  af^ucy,  or  lUpinil 
on  State  ojiiniun  nud  Btate  diiicr^linii.  Tho  jwople  had  had  iiutle  enon^  ct  that  kind 
of  xormmcnt  uodir  tlu  confrduicy,  Uo'ter  that  qratcn  the  legil  action,  tha  appti- 
catton  of  laiff  to  inJiTiduali,  bcloot^  exeluArcly  to  tb*  State*.  Cnngna*  omM  onlj 
Tecainmeud,—  ihi'ir  Bft«  wera  not  of  bbdioft  faro*  tUl  tka  Stale*  had  adopted  aad  Mue- 
tioDcd  tlirin.  Are  ■•■  in  llwl  condilicrii  «till  f  An  wo  ytt  at  the  mroy  of  State  di»- 
ctetiDa  and  Stale  coaatradioii  I  Sir,  if  tm  arc,  ibcn  rain  will  b*  our  attctnpt  to 
maintain  the  Conilltution  under  rhtck  «d  ait. 

"But,  tir,  tlia  i-itidrliavewlMlyinoviiliol,  In  theOmititatiM  itaelfl  a  proper,  raHo' 
Mn  Rioilc  nnd  tiiliiinnl  for  atltliaj;  qwalioaa  of  eonatiliidimat  Utr.  Tbcfo  aio,  to  tha 
Canirtllutinn,  fEniiiia  .jf  piiwtni  to  Oaogtca*,  and  n*lri(«lDna  on  lliM*  powtrv  Tbtn 
aia,  alao^  pivhibitloaa  oo  the  Statoi.  Some  aulhoiily  mnei.  ihunfot*,  nefwrtly  wriil, 
haHng  tb«  ultimate  jariBdietioM  to  ix  and  uxntain  ibr  intctprTUtlMi  of  ihm  gnntt, 
notiictiapa,  and  jiR>hil4tiaBL  Th«  Couatitalioa  ha*  itarlf  panted  o«tt,  ordained,  and 
wtabliahed  that  antboritv.  How  haalt  acoomplbhed  thiigraat  andnBcnlialad  1  By 
dcdarim,  air,  ibi  '  tlu  CtMUHiiUitn  and  iht  bust  vfVit  VniUd  Sbtr*  tiuiJt  m  jmrmi- 
amt  Uiermf  Atdt  bt  At  »uiirx!H*  iaiir c/ 11>t  land,  anylkini  <i»  tkt  Catatiiutiau  w  U^atf 
wif  StaU  lo  Ikt  emtrary  mlaiilkiiaMJiitg' 

"Thli  air,  «M  tho  Gnt  gnat  atcp.    By  thb  (he  aapfamaqr  oT  tb*  COiMitiillon  taA 


CH.  IV.] 


nSAl,  IXTEBPEETEH. 


298 


§  892.    In  thin  review  of  the  power  of  the  judicial  departinont, 
upon  a  queatiun  of  Ub  eupromacy  in  the  interpretation  of  the 

law*  of  tha  Dnltad  SUIM  b  dMUrtd.  Tlie  iwopl#  ao  will  it  Xo  Stain  Uw  U  to  be 
iihA  wlik'h  eomm  in  ronlliut  witL  llin  Coiiititution,  oi  aoy  U«  of  the  t'oiliv]  Suiai 
puuJ  ia  punuance  «f  it.  But  «bo  >liaildiwidt  tkiiqaoniDii  of  inlcrfereiicn  I  T« 
whom  lie*  the  hat  «l>pnl  r  Thii,  lir,  the  Coniitllatlan  iMrlf  lUcId**,  ibo,  1^  declaring 
'  tKat  tin  jtdieial  paaer  AalltMfJtdteaU  earn*  arMnj  tauUr  Utr.  ConMilKlim  mnd  lam 
o/Uu  VniM  SUtet.'  TluM  two  proviaiotui,  air,  oovn  thv  whole  granniL  Tbry  ate,  in 
trath,  tile  key  lion  e  of  lUc  areli,  Willi  th™c,  it  i>  a  Coniiiliition ;  without  thcni,it  ii« 
Mofcdencr-  Jn  punuuncc  of  thrw  cl«r  uid  cijirH*  {irnviiion*,  Con)[n*i  fataUiahed 
■t  ha  vtrj  Ant  huioq,  in  tlir  Judicial  not,  n  motlc  for  cartTing  theni  into  full  nlTaet, 
and  for  btinitinK  all  iiiitatidiii  nf  canatltiitloNal  powfr  U  th*  Snal  <tMU(ai  of  tlw 
Snprtue  Conn,  ll  tluiu,  air,  Iwmiiir  a  KoviTiiriiMit.  It  th«n  haJ  lh«  nmni  of  b«I^ 
ptoMttioo  ;  Bud  bill  for  llm  it  noulil,  in  oil  probutiilitT.  liave  bora  now  aniong  Ihinpi 
wkich  an  pait-  Hiviiig  comtituiisl  ihr  goTrmmcnt.  and  d«cl»rcd  iti  ponn,  the  pen- 
pi*  have  Airther  aniJ  that  niicp  lomrbcidj  niuirt  ilccii]*  on  the  eatnnt  of  thta*  poutrii 
tb*  itovamniKiit  xhall  llnclf  ili^iiilu ;  «iil^rii-i,  nlttHft,  Uk«  olhcr  )io|>iiUr  govtrnntenla, 
U>  Ua  najwiiailiilily  to  th?  jwnplv.  Anil  now,  air,  I  rqicat.  how  ii  it  that  a  Slate  hpi- 
latura  avquirm  any  power  to  intecferr  1  Who.  or  vbtt,  give*  them  the  right  to  aajr  to 
the  pfoplo,  ■  We,  who  are  your  BKenta  and  ■erranta  fot  one  {nirpoae.  will  imdettalu  to 
dcelile  tbat  your  other  agrnta  and  aervnnia,  appointed  by  you  tot  BUotlier  purpoat,  have 
tiBBiandtil  the  aulbority  j«n  gave  them  f '  The  reply  would  b*k  I  tliluli,  not  JnipvTtl- 
amlt  *  Who  mada  yoa  a  Jud^anr«r  uiotlivr's  aervanlal  To  ILelr  own  niu>ti<r«  thtj 
MudorUL' 

"Sir,  I  deny  Ihia  powvr  of  Stale  lejtiiJatnmi  alti^iFtlirT.  lltannotitand  tb«  tut  of 
•rauninalioi.  Gmtlenien  may  isy  thnt,  in  aji  exticine  cuw.  a  State  jtovcrnnnail  mlj(ht 
pivlMl  tho  fMopU  tlptn  laloli'mbl"  uppr<->i«ion.  liir.  In  anch  a  nun  ilm  [wiplv  niiKht 
protect  theuaelres,  willioul  tlie  aid  of  th*  State  goi-emmenla.  !t<uh  a  ra*.'  ■amula 
rmtation.  It  must  make,  when  it  o>Ki««,alaw  foritaeU.  A  nuUifying  act  of  •  Slate 
lnliklMni  iMhmil  all«i  llni  laii.  mil  iinlii  rtaiiMiicoaoy  more  UwfuL  I*  maintMiuDf 
thiM  atatiiiMiita,  dr,  I  am  bat  aaaertinK  the  righia  of  the  people.  1  (tat«  what  tlief 
liavodacUrad,  and  iiitl«l  ou  tbtir  right  to  dNloia  it.  They  bar*  cha*ni  lo  repo**  Ihta 
po**r  in  llw  geneid  govemuHuit,  aad  1  Ihini:  it  my  dot;  to  aapport  It,  tike  otbar  oni- 
ftit«tiaaal  power*.*' 

8**  alM  1  Wlbon'a  Lav  Tjaetttna,  Wl.  Mi,  It » tmlr  nupriBag  that  Ur.  Tko- 
Piwidenl  Calhoun,  In  hia  bttrr  of  the  SSih  of  Aogiul,  183-i,  to  GoTonior  lUnultoa 
tpablitlMd  whil*  tlle  pnaent  work  wax  paning  tliroiq^  tb*  pr*Mi),  aboold  hav*  tbooglkt 
Ibat  a  pcopodtMO  ■Kvalj  offerrd  in  tfa«  oonvenlion,  and  roforred  t«  a  coMinlttM  far 
thdr  eoaaUtraUon,  tkat  "  tho  jniudklion  of  the  Supmn*  Court  ohall  b*  axlMdad  lo 
an  (Mtrorenla*  batwtM  tha  United  Slate*  aud  bd  individual  State,  or  tha  Uaital  State* 
aad  tbedlixna  ef  *ti  indivMual  i<tal«"  iJonma!  of  ConTentMU,  30tb  Aug.  p.  SM), 
aboald,  ia  connaction  wilbotheraglTiuga  n*it*tlT«on  Stoto  bwa,«alab)l*)i  tli*  eoadn. 
rinn  tlMt  the  aouTtnlian  which  rramtd  the  Conatitution  waa  ojifisaed  to  granting  tb* 
powtr  to  Iha  gCMtal  ffortnunont  in  any  htm  to  exercia*  any  cwitrol  wbaterer  orer  a 
8ui*  ht  foroe,  vcto^  or  Jiullcbl  proeew^  or  In  aaf  otbar  fann.  Thi*  danae  for  oral*^ 
ring  j»rladlmlon  em  tile  auprtaoe  Cowt  In  contrawriiea  betwaaa  die  Cnited  Btataaand 
th<>Stalei^  mut,  like  lbeoth«rToulivreralM  batwata  Stalra  er  betwMo  indirldnali, 
Trftrnd  to  tb*  judicial  povrtr,  have  btcn  inl*iida>)  to  apply  •avIntlTriy  (OMiiliiof  adWl 
natare,  reapeciiai;  pnipertj,  i^U.  caitliB«t«,  or  otbcv  clatuw  by  tho  Culud  Stata* 


294 


CONiiTITUTrOK  OP  TUK  UNITED  STATES.  [BOOK  111. 


Constihition,  it  has  not  been  thought  nooeBsarjr  to  rely  on  th« 
deliberate  judgmenta  of  that  department  in  aSirmanc«  of  it  But 
it  may  be  proper  to  add,  tbat  the  judicial  dcjuirtmont  hiu  not 
only  conntantlx  oxerciKod  this  right  uf  intcqia-tution  in  the  lost 
resort,  hot  its  whole  oourso  of  nMwoningit  and  o)icralion«  hna  pro* 
I  cecdcd  upon  the  ground  that,  once  made,  the  iiitcrpretatioD  vrt» 
eoncluttivv,  as  nx-ll  upon  the  States  m  the  people.  ■ 


I  wgtinaX  •  Suia;  tsd  nnt  b>  ih*  dcdilon  «t  OMUtttntuiiil  qsMAioiu  in  the  iMnMl.  At 
a  (ubtMiOMt  pvrtod  iif  tli6  onnTMttton,  lb*  jndld*!  paarer  «bi  cxpivHl;  cstcndod  to  all 
euM  uiaiag  undtt  ilia  Cemtiliilim,  Um»,  Mid  fraotfet  or  Um  tintud  Suto,  aad  to  tU 
coulrornBioa  to  which  the  UuJtnl  Sutn  (binild  fas  a  futj  (Journal  of  ConrvulkJi, 
STth  Alts-  P'  IBS),  tliiu  coTcring  Uw  wliole  gronnJ  at  a  right  U>  <holil«  toMtilotioaal 
qocallann  at  a  jiidieiitl  Dituro.  Anit  thii.  ai  tlie  Fadoralart  infonuB  tu,  «aa  tka  Mibiti- 
tulQ  foranRptlwupon  Suu  luvi^  and  the  only  wta  whjnli  wm  iletmed  ttto  or  effldntt. 
Tlia  FedCTBliat.  Ko.  8Q. 

1  Haitin  VL  Hitnter.  1  Wbrat.  fl.  3M.  tSt.  Ac,  *l%  US  i  Cobtaa  a.  Tlia  Sut«  et 
VJTKiniii,  <  VThMt.  R.  Se4.  9'i,  3*'  to  3VS ;  Id.  <13  to  43S  :  Bank  of  Haniiltua  *. 
Dudlfy,  S  Pctnn,  B.  SS4;  Wan  v.  llyllon,  3  Dall.  1»B.  Tlw  laOKBagii  of  Hr.  Chut 
Juatio*  Maraha]l,tniUlivarin)(lh<>«iiit)lcHiof  thccoait  InColitait  KVIr](lala)eWhaat. 

'  SSI  to  W>),  piasNiU  tha  Bjgnm«ut  In  favM-  of  tlie  Joritdiolion  of  llio  judielaLilapart- 
JDFnt  In  a  ray  roreibla  raanntf.  "  Whit*  weighing  atgnnenta  diswn  Tram  the  Mian 
d  govtrrainvnt  md  from  tlia  ((cnenil  >^Hl  of  an  inMrunMol^  awl  nrg«d  fc*  tlw  pnpoM 

'  tf  nanvwlng  the  oonrirnctiDn  which  the  aonli  of  that  intttaniMt  smoi  to  feqalK^  h  la 

'  proper  to  plaoe  in  the  opixxile  icale  Uioao  )inn<H|ilfe,  diawa  (ram  the  miae  aoBreee^ 
rhUhgotonuilun  tlw  <ronk  in  their  full  oprtation  and  natnnl  import.  One  of  Aao, 
irhlch  fan*  been  pmscd  vith  great  forro  by  ihecouaarlfor  the  pUallS)  in  error.  b,lku 
the  judlelal  povvr  of  Fvnry  n<ll-coD*titDtfd  goiemmanl  nuut  be  ooeiteiutve  attK  the 
IrgielatiTtv  and  mast  be  Apeble  of  deciding  erary  j«dkW  ^UMllon  vhUih  powa  <«t  of 
Ibo  Conatltution  and  laws, 
"  ir  aay  prapedtleu  may  be  conndoml  aa  a  poUtiot]  axioaa,  Mm,  m*  thinlc,  maj'  be  aa 

'  eonaMend.     Id  rraeontng  upon  it  m  an  ibitraet  ijuntioa,  tbcea  would  pfobab^  «xlU 

Iko  oontnritty  of  opinion  rt*i>Mllas  It.     F.vm-  argument  rmviag  the  neoeeelty  of  the 

'flepattaient  ;«or«a  alao  the  proiirivly  of  giving  ihle  extent  to  It.  Vadotut  mean  to 
•Bytbat  Ibe  jariHlkttonofthe  uourt*  of  the  Union  eliouH  be  conattiwd  to  be eowtewiira 
with  tha  legjelatlrn.  mcroly  bcceuac  It  ii  lit  that  it  (bonldbeee;  birt  weBcantoMy, 

'  that  thle  filDeMfuml).hi'iaiiargiim*iit  laconatnungtbeConetitntieawUakeiighlBMar 
to  1m  oT^rlonticil,  mil  wbi<;li  l»  iiid«1  mp««lally  MtltJed  to  oooAidfiatiN  when  we  aie 
tniiiiiring  wbttliri  the  worda  of  the  inetrnnent  which  purport  to  Mtablilb  lUl  princi> 

^  jiB  diall  be  cc<itr»j;ted  for  the  pnrpoee  of  destRiyiag  ic 

"  Tlte  mteefalcvonm  eonwqnittcn  of  the  eonatrtu-lion  tonteeded  far  en  the  fait  el 

'  Tlr^la  ate  elto  ralltlnl  to  great  ceoMMatlnn.  It  would  fnaatTate,  It  haa  bene  leid, 
ibegQertnnentaDdltiiUnBt  ibelntorcreTj-StaUlntbrUniMi.  A»dwoBUn«tlhla 
fen  it*  tfiicl  r  What  powCT  of  the  gortenBmt  mold  be  aceonlrd  bjr  ite  owa  Btani^  la 
any  Stote  diipoeed  to  reeiat  ita  eaeontian  by  a  eenoa  of  Itgielatiea  f  Tin  Uwi  nnut  be 
neniited  by  bidieiibHli  acting  witkla  the  ■creml  Stetee.  If  thcee  indiHJuaU  isay  be 
CTpoeed  to  penalUot,  a»d  If  the  tottrto  ef  tha  tTaJon  ean»«t  oonml  the  Jodgmrnte  by 
whxAi  theee  peoaltlM  mny  be  eftfotced,  tha  oe«rae  of  the  gorenmenl  Buy  bcv  at  aeij 


RHaL  IKTXRPBETra. 


29S 


ca.  IT.] 

§  893.    But  it  maj  be  ukod,  as  it  Uiw  boen  ukcd,  wbat  is  to 
be  the  remedy,  if  there  bo  uiy  miiiooiuitruction  of  the  Constitu* 


tim^  amBtnl  b<r  Uw  rill  at  oiw  of  iu  mMnbcn.     E*cti  menibtc  will  poMHM  a  Mto  on 
tbo  will  of  the  whole 

"Tbo  nniwor  which  liMbMiiiilmt  la  tUt  ugummt  <Iom  not  iho;  ila  truth,  but 
intiM*  thkt  cotiftdniM  ia  njKonl,  uid  may  beMfeJf  iv|kmo1,  in  iL«  8ut«  liMlMiVM ; 
ami  liist,  if  llivjr  (hall  ever  btoome  ao  Inane  or  to  wicknl  aa  lu  ank  tha  daatWKtlwi  of 
Uu  govcninicot,  the}'  nay  aocMnpluh  thtdt  ol^Mt  by  rtfiiaiiig  to  ptrfmn  the  fiioclioni 
aanniMil  to  thctn. 

"  W*  readily  ooncnr  with  tb«  muiual  tat  tha  dolnubnt  In  cht  dwiarmtlon  that  tha 
MM*,  mMeii  hare  b«n  poti  or<Urmil  IrginlalirB  miilaiiot,  fur  the  pur)<aa«  of  oppoaiag 
Uw  aoknowled^  powvtt  ot  the  gotemiUBnt.  air  tslntat  caioa.  aiid  in  tfaa  hop*  that  ' 
tliiejr  will  never  OMur  ;  but  wa  <Minot  help  Ixlicnii)!  thai  a  gcmnal  convictioa  of  tha  i 
total  incajiaclt;  ei  tlis  gorvroineiit  to  protacl  ItmU  and  iU  lav*  in  lueh  caaca  would 
eoatritwto  iu  no  inooiuidtnUo  dtpaa  to  ihali  oocumai'aL 

"Lot  it  be  admitted  that  the  caica  which  hare  been  pui  aR«itrttn«  and  improbabbv 
ytt  tfatK  «ie  fradatioiu  of  appadlian  to  tli«  lawi.  tin  ahort  of  thiMi  oaao,  which  miKht 
haT«  a  haotfal  inilnenoa  on  t)i»  alTaini  nf  th«  nation.     Ditfamt  Btataa  may  tatntain 

iffiinnt  opialou  an  tha  tnio  omalrauiioti  uf  ilia  cuualltuUoiul  |nw«nof  Cengnaa.  Wa 
know  that  at  004  time  theasaumpliauor  theilublauanlmiliilby  tlieasrvralStataadnr* 
ing  the  war  of  out  Berolution  wu  dwmnl  uncomtitntional  by  aome  «i  thno.  Wa 
Icnow,  too,  that  at  other  tbnca  certain  taxea  impwed  by  Codkto*  have  betm  fcononncod 
unraatiitotiowtj.  Olh(i'ia>(havaliaani|nnitliin«d[>aitiilly,  while  Ihoy  ncniuppxitad 
bj  thr  grtal  majority  of  the  Aiucticaii  jmiiltt.  We  har*  no  aMuntuca  that  hv  aliall  ba 
lata  dividni  than  ws  hare  been.  SUtM  iDay  Icgiilate  in  confomiily  to  their  opiuiani^ 
and  may  enforce  thoat  opinlona  hf  pcnalliea.  It  would  be  hnardiag  too  ranch  to  amatt 
thai  tha  J^dkainra*  of  tlw  fitataa  will  b«  axampl  from  tti*  [aajudicaa  by  which  thu  Irgia. 
lattnaand  paot>laar(  iBfliMnM^,  audwiUcMUtiMtOIWftctly  ini|«r(lal  tritmndii.  In 
maay  fltaira  tho  jndf^  arr  dependeitt  for  oBlM  and  lor  aaUiy  «i  itiu  otll  of  iliv  Ivgiila- 
tora^The  Conititution  al  the  United  State*  funiitfaca  no  •Bcurity  nf^init  the  uDivrnuI 
adoptloB  of  thia  priii«i|ila.  Wkm  wa  ofaaorro  tha  Impoftanoe  whtcli  tliat  Conalitutinn 
altochae  to  tha  ind<{<eiid#UM  of  Judga)^  wa  aia  tha  laaa  Inclined  tfr  aujipoaa  thHt  It  van 
liave  intended  to  leave  thtwa  conaliUational  qucatioii*  to  tribnnaK  wliei*  thia  iiutBiion- 
denoe  may  not  eitit,  iu  all  mk*  where  a  SUte  ahali  proiMuta  ao  iudiridual  who  i^laim* 
tha  protection  of  an  art  ot  Can){ra(&,  TbcK  [iriaKUiiona  may  take  plane  eris  withoirt 
a l«giaUti«'a act  A  jvraonmaklngaaeiinrDiin-lcfan  act  of  CongrMimaybeiDdicled 
*•  a  IrMjiaacr  it  tone  tiiw  I<wii  einployi<d.  and  of  Ihl*  a  Jury  mqr  jviigt.  How  anco. 
aire  may  be  the  misvliivf  if  the  fint  deoialon  in  tueh  caaaa  ahouhl  be  flnal  I 

"TWae  eollinona  may  take  phoe  ia  timoa  of  ao  Mttaafdinaty  ocoimatioft.  Bot  a 
oonititution  la  fnmed  for  agea  to  oeom^  and  k>  deeignad  M  Bjipraadi  intmortatity.  a* 
nearly  aa  human  Inttltutloni  eaa  appnadi  It.  ItaeoaoMeaniiot  ■IwayibalmnijulL  It 
tt  Mpeatd  li>  atonn*  Mid  lem|iMla,  and  Ita  framm  mnU  be  nniriin  itaUawen  Indeed,  if 
iheyhare  not  prorided  it,  at  far  aa  ita  nature  oill  permit,  withUunaeanaaltrit-praaar-  . 
vatteai  bona  the  prtil*  it  may  be  dntiaed  to  FooMinlar.  No  govnnmcvt  ooghl  to  be  ao 
dcbcttra  is  Ita  OTBaniaatian  aa  not  to  oonUiu  within  ilaelf  tiM  means  cf  lecwiic  tha 
•MtMion  of  Ila  own  lawi  affhiat  nihrr  lUncrw  than  thoa*  which  oocor  aireiy  day. 
Ooartaof  Jnatka  amtlieneanamaniiiuallyemploynl :  and  It  la  mawmabla  to  expect 
that  a  govemmnit  ahtnld  irpoa*  on  ila  own  couria  rather  than  on  otlfta.  ThM*  la 
ocrtninly  nothing  in  the  cinnunatoKaa  noder  which  out  CaaMinUaii  wa*  (oroed.  notif 


COKSTITCTIOK  OP  THE  ITNITED  STATES.  [BOOK  HI. 


tion  OD  the  part  of  the  gorornment  of  the  United  States  or  Ha 
functionarieH,  and  tmy  power  exercieod  by  them  not  warntnted 

ing  in  ^t  iattotf  of  lli*  tinMi,  «hkl>  wonlcl  Jnatliy  tb«  opinion,  tlmt  th*  ronOdraec  n- 
ftmd  in  t)i«  Statra  wm  m  Unplkil  at  Ut  Imtm  la  Uiem  and  thnir  ttilnmalH  lliv  ponrof 

[Iwivting  or  il«(i»tiug,  in  ttn>  form  of  law,  tlie  hgitiiuala  mMnma  of  llin  Uniun.  Tbc 
rDqiuMtiiini  of  Congni^  under  tho  cosrcdcntiou,  wwicMMnstitutioiiulirobligKtMyw 
tl>«  \»Tn  cnai?Ini  b;  the  prcMnl  CongroB.  ThU  ihq;  vm  hBluuially  Jurtipinlcd,  ii  a 
bot  «f  uninnnl  ooterirtjr.  Willi  Ihu  knoxladftncf  ttitt  fact,  and  uudn  lU  MI  imauuni, 
a  conrtniioiL  iraa  uaeuiblni  to  cliaiig*  tli>>  «7Vl«ta.  la  II  «4  iiujinibablv  that  lli*y  ahouJd 
confer  on  the  judicial  dcpaitmt'ut  liie  ixivar  of  Moatruiag  tiu  Connlitnliou  and  lairi  of 
the  IJnioii  in  every  cuo,  iu  the  lut  trurt.  and  of  pmcTring  them  frgui  all  rioUtion 
fioni  tvntj  iiiiartT,  *o  far  oa  Judicial  deciaiona  taa  iiimiwi  thorn,  Ihnl  Ihia  iDifonbtUl- 
St;r  hIiuuM  (WKXTilliilly  alErctth*  conttmctifm  of  tha  nm>  ajMani  r  Wn  am  told,  and  m 
are  Irtdy  told,  thnt  lh«  gnat  «hMi)^  vrbU-ll  ia  to  )[irritllic*cy  tulbepreaBuli^tMa  lalU 
abUity  to  act  on  indtviduuU  dir«rtlf,  insUad  of  acting  through  tb«  inatruniratalily  of 
Statu  itoi-iiminenla.  But  angbt  not  thU  abdlity,  in  fcwon  uid  BOnnd  policy,  to  be  applied 
dlm;lly  to  lb*  praUciion  of  Indirldnala  rmployed  in  the  cxemtioD  of  the  Uwi^  ai  mil 

■  ta  to  their  oo«niion  t  Your  Uwt  n»i:\  tiia  tudivldiial  withcml  tlir  uid  at  any  otb«r 
power  ;  why  may  tbey  not  pralent  hiiu  frou  puaUinuful  fur  pertomiing  hu  duly  In 
axccnlin^  them  t 

"  Tha  oonoarl  for  Vlrfjlnhi  tndoiTor  to  obrlaU  the  forco  of  thc«  argument*  by  «y- 
tag  thai  tbr  daugm*  tlif;  niggMI,  tf  not  Imafcf nary,  arn  Invvitahlii ;  tlint  Uu  Ceniititu- 
tion  can  make  no  proTinioii  a^inst  tbein  ;  iitjd  tliitt.  tlipreforr,  i>oonittniingtliat  inatn- 
mout.  they  ought  to  be  excluded  ftnmuiir  con liJriu lion.  Tfaiactateof  tbin^i,  tbsy  My. 

rcanuot  aria«  until  th«ra  ahall  W  a  diapoi'itinn  to  huiUle  to  tk*  F«««mt  politkal  q«tna 
M  lApruducsu  dtitfrrtil nation  todialruy  it ;  u»d  whvu  thatdMarBimtiod  thall  bo  ptD- 
duced.  its  elFectn  will  not  ht  nairainMl  by  iMrchinant  Btiinitattana.  The  faU  of  the  Ccai> 
atitution  will  not  then  deptnJ  on  jodieial  deciaioni.  But,  ahonlit  no  appeal  ha  made 
to  furce,  the  Slatoa  can  put  an  end  to  the  govennnint  by  r«huing  la  »el.  Tbay  liavo 
only  not  to  ohct  fmnat^r*,  and  It  ixt^it*  without «  alm^U. 

"It  is  very  true  that,  Hli(<u«rtr  limlility  to  theexiatingiTVtna aUt  btOMH  nairvr' 
m1.  it  will  be  sloo  irnautiblo.    The  people  made  the  Covutttntion,  and  the  pniTde  can 

y  unmake  it.  It  la  Ibe  enatnn  of  their  will,  and  lirea  o«lj  by  ibtir  will,  list  ikl* 
•npr«roe  and  IrrealaUbla  power  to  niak*  or  to  onniakc,  rtaidaa  only  in  tbt  whela  bedy  of 
th«  pmple,  not  In  any  mbdlTMon  of  them.  Th*  attempt  of  any  of  tha  part*  to  axw- 
tiic  it  it  uiurpatioD,  and  ought  to  bt  Tt|wUed.by  IIwm  to  whom  the  (Miple  h>t«  dele- 
gated  their  power  of  rrpelting  it, 

"The  nek nonledKtd  inability  «f  Iha  gonmumt,  than,  toaniulB  Itmlf  a^uiiM  the 
public  will,  and,  by  foroa  or  otharwlie^  to  eootral  Ibe  whofo  natle*,  b  DO  aonnd  aign- 
niitnt  In  aiip[Hirt  of  it«  constitutional  inability  to  pnaarre  Itielf  agalnUaaection  of  Um 
natiun  acting  la  opf4tntioa  to  the  graeral  wiU. 

"  It  la  ttne,  that  if  all  the  Stain,  or  a  minority  of  them,  rehuo  to  doct  nnatom.  Ilia 

rltgiaUtire  powna  of  the  tTnion  will  bruapondrd.  But  if  any  on*  State  aha  U  rrfuaa  lo 
ilect  them,  tbe  S(«utc  will  not  on  that  acoonnt  br  ibe  kaa  capahio  of  pwformiaf  all  ila 

''  haetloai.    The  argumuil  fonaidnl  on  tida  fact  would  awan  mlbw  to  pnita  the  aalairdi- 

BBtieo  «f  tha  parta  to  the  wboli^  than  the  nnpleta  ImUfwntlcnoa  of  any  one  of  thas. 

tnmvn  of  Um  CoMtilAlioa  were,  inifaad.  iwahia  to  aialn  any  pforiiiMn  wkioh 

hodld  piotect  Ihat  iwtnmNat  agauut  a  itcaanl  wsbinatloa  «f  the  Stuca,  or  of  llw 

pl(^  for  Ht  dMtniotioa  i  aad,  eooaekn*  cl  Ihi*  faubUity,  they  turn  not  tnade  the 


CH.  IT.] 


FINAL  INTERPRETER. 


207 


})}•  iu  tnic  meaning?  To  tliis  qtiostiun  a  general  anawer  may  bo 
given  ill  the  words  of  its  early  expositors:  "The  same  a«  if  the 
State  legislatures  should  violate  their  respective  constitutional 
authorities."  In  the  first  instance,  if  this  should  l)c  by  Con- 
gress, '*the  success  of  tlic  usurpation  will  df|)end  on  the  execu- 
11^*6  and  judiciary  departDoenta,  which  are  to  expotind  and  give 
ctTect  to  till?  legislative  acta;  and,  in  tJio  loat  resort,  »  i-emedy 
niuat  be  olitained  from  the  |ico]iIe,  who  can,  by  the  election  of 
more  faithful  representatives,  annul  the  acta  of  the  usurpeni. 
The  truth  in,  tliat  this  ultimate  rmlrpss  mar  ho  more  confided 
in  a^inst  unconstitutional  nets  of  thn  federal  than  of  the  State 
tegialaturcs,  for  this  plain  reason,  that,  as  every  act  of  the 
former  will  be  an  invasion  of  tlie  riphts  of  the  lattor,  tlipse  will 
ever  be  ready  to  mark  the  innovation,  to  sound  the  alarm  to  the 
people,  and  to  exert  their  local  influence  in  offectinR  a  change  of 
federal  rcprcHCiitatives.  There  being  no  such  intortnediute  ImmIv 
between  the  .State  legislatures  and  the  people,  Intei-ested  in 
watching  the  conduct  of  the  former,  violations  of  the  Slate  con- 
stitution are  more  likely  to  remain  unnoticed  and  unredressed."' 
§  894.  In  the  next  place,  if  the  nsuqmtion  should  be  by  the 
Pre«ident,  an  adequate  check  may  be  generally  found,  not  only 
in  the  elective  franchise,  but  also  in  the  controlling  power  of 
Congreaa,  in  its  legislative  or  impeaching  capacity,  and  in  an 
I  appeal  to  the  jitdieial  department  En  the  next  placa  if  the 
iQSurpatEon  sltould  be  by  the  judiciary,  and  arise  from  corrupt 
Imotivcs,  tlio  power  of  impeachment  would  remove  the  offenders; 
I  and  in  nuist  other  caaes  the  legislative  and  executive  authorities 
eonid  inter]Mme  an  efficient  barrier.  A  declaratory  or  prtdiibit- 
ory  law  would,  in  many  cojicSs  bo  a  complete  romwly.  Wo  have, 
also,  so  far  at  leaat  as  a  conacientious  sciihu  of  the  obligations  of 
'  duty,  sanctioned  by  an  oath  of  oflice,  and  an  indissoluble  respon- 
sibility- to  the  {Myopic  for  the  exercise  and  abuse  of  power,  ou  the 
part  t^  different  departments  of  the  government,  can  influt^uce 

■tUniit.  But  tbrf  vete  able  lo  proviiU  (gkliiat  Ihs  npnalloD  of  dmmuim  ulopbiit  !■ 
taj  MU  Sutc,  wbfWD  («ndtn(7  might  be  to  Bintt  tlie  txanilioa  of  ttir  \tn.  mJ  tU*  it 
WM  tb*  |ai1  of  tmn  wUdoiu  lo  Ktttnpt.     Wc  thin);  Ibex  Imvv  altfniitcd  it." 

8m  alu  M'Callocfa  r.  Utrylud.  4  WheU.  SItt.  40S,  I0«.     Soo aUo  the  rauoninf  uf 
Mr.  Cliier  Jsuice  Jiy,  In  Chidtolm  ><.  Oi-Offiit,  t  MM.  41>  t  ihhon  w.  Huh  of  Uie 
L'Bitr.!  StatM.  9  Wheat.  T3S.  918.  819  ;  an-l  Gibbon*  i^  0«deii,  t  Wbnt  I.  81ft. 
t  Tbt  F<da«li«t,  Ka,  II ;  1  Wibou'*  La«  Lwtnrw,  MI,  US ;  Dww't  App- 1  M> 

^5a. 


S98 


CONSTITtmOX  OP  THE   UNITED  STATES.  [BOOK  in. 


humnn  minds,  Horae  additional  guards  agaiiut  known  and  dolib- 
ernte  luiurpationa ;  for  both  are  provided  for  in  tlie  Constitution 
itaelf.  "The  wisdon]  and  th*;  dieicrelion  of  OoDgreSR,"  it  hna 
bc«n  juBtly  obsen-<Ml,  **  their  identity  w'Ah  tho  people,  and  the  in- 
fliience  wbicli  thvir  cunatitueuts  possess  at  elections,  are,  in  this, 
88  in  many  uthiir  iuatuiicfs,  — as,  for  example,  that  of  declar- 
ini!  war,  — the  »olc  n^slruints;  on  this  they  have  relied  toaecure 
them  from  abuse.  They  are  the  resttrainla  on  irhich  the  pcoplo 
mufll  often  aoltfly  rely  in  all  representatiye  government*. "• 

§  8l).>.  But  in  the  npxt  place  (and  it  is  that  which  would  fur- 
nish a,  ease  of  most  difficulty  and  danger,  (hough  it  may  fairly  bo 
presumed  to  be  of  rare  nccurrence),  if  the  legislatire,  executive, 
and  jadicial  departments  should  concur  in  a  grasa'usiirpntion, 
there  is  still  u  ijeaecable  remedy  provided  by  the  Constitution. 
It  is  bjktlic  power  of  amondmont,  which  may  always  bv  applied 
at  the  will  uf  threc-fourtliK  of  the  iiitates.  If,  therefore,  there 
should  be  a  corrupt  €o-operatiou  of  thn-e-fourths  of  the  Htwtes  for 
permanent  usurpation  (a  ca»e  not  to  be  Kuppused,  or  if  su]iposcd, 
it  differv  nut  at  all  in  priueiple  or  redress  from  the  ejise  of  a 
majority  of  a  8tat«  or  nation  having  the  tunno  intent),  tbe  cuso 
is  certainly  irremediable  under  any  known  fonos  of  the  Conati- 
tutiou.  Hie  States  may  now,  by  a  oonslitutiotml  amendment, 
with  few  limitations  diniige  the  u'&ole  structure  and  powers  of 
the  government,  and  thus  legalize  any  present  e-xceas  of  power. 
And  the  general  right  of  a  society  in  other  cases  to  cbangv  the 
government  at  the  will  of  a  majority  of  the  whole  pcuplo,  in  any 
manner  tliat  may  suit  its  pleasure  is  undisputed,  and  »ecuis  in- 
disputable. If  there  be  any  remedy  at  all  for  the  minority  in 
Buch  cases,  it  is  a  remedy  never  provided  for  )>y  human  instito* 
tiona.  It  is  by  a  resort  to  the  ultimate  right  of  all  human  l>eing« 
in  extreme  cases  to  reaiat  opprosaioit,  and  to  apply  force  against 
ruinoua  injustice,* 

§  396.  As  a  Bt  conclusion  to  this  part  of  these  commentaries, 
we  cannot  do  better  than  to  refer  to  a  confinnatory  view  which 
has  been  recently  presented  to  the  public  by  one  of  the  (ramvrs 


>  Gtl>b)M  p.  Ogdon,  t  WliMt.  R.  I,  197.  8«a  ■!•(■.  on  Um  inna  nibjoct,  tlia  oteer- 
vntwm  «l  Mr.  JiMke  Jotiiwan  In  dollTMing  tli*  oftofon  of  tb«  eoun,  in  Andtnon  ». 
IhuiD.  S  Wlini.  R.  SOI.  -iM. 

*  Sm  WslMUr'*  ii|>MdiM,  fip.  409.  W>  i  I  BUab.  Camm.  ISl,  1«S.  8m  tbo  t  TMk* 
eft  Bkek.  Oontm.  Apt*.  73  t«  76. 


CH,  IT.] 


nSlL  tNTKSPBFTBB. 


S90 


of  the  Constitution,  who  U  now,  it  U  belicTod,  the  only  flar\'iv< 
ing  nieiiibor  of  tlic  federal  convcution,  and  who  by  his  early  aa 
well  08  his  later  khors,  has  entitled  himself  to  tho  gratitude  of 
his  coimtrj'  as  one  of  its  truest  |>ntriots  and  mo«t  cnlif^iteuud 
friends.  V'encrnble,  as  he  now  is,  from  age  and  charactvr,  and 
absolved  from  all  thotie  political  connections  which  ma;  influence 
the  judgment  and  mislead  the  miiul,  he  speaks  from  his  retire- 
ment  in  a  voice  which  cannot  bo  disregarded,  when  it  instrscta-j 
iia  by  its  profound  reasoning,  or  admonicihes  us  of  our  dangers  bj 
its  searching  appeals,  llowerer  particular  passages  may  aeem 
open  to  uriticisni,  tho  general  structure  of  the  argument  stands 
on  immovable  fuundulions,  and  can  scarcely  perish  but  with  tho 
Constitution  which  it  seeks  to  uphold.' 

>  BefcMBU  u  fam  nuk  to  Mr.  Hullton'*  LaUtr,  i»M  AnglUt,  1S30,  to  Mt. 
wuil  EvHvlt,  [Hiblbhad  la  tht  North  Anwrioui  Bevlvir  for  Ocloti«r,  USO.    Tke  kH^^ 
loaing  extract  ii  l«l:en  rram  p.  Ml  H  acf .  :  -~ 

"  In  ordt*  to  uadonrtnad  tho  Into  chwxtBr  of  th»  Comtitntfaai  of  tlio  Dnitod  StMM, 
tha  enor,  not  imoaronioii,  mnit  bo  arokded  of  viatrjnj;  It  throuf  h  cbt  ntdiun  •illwr  < 
•  ooiuotlilMwd  Ronmnivnt  oi  of  >  coi>r«l>nittid  gownmoDt,  wlillM  tt  b  neitbtr  IIm  i 
nor  tht  ollicv,  but  >  oiiitun  uf  botti.     Anil  liBTinft  in  no  uodel,  th*  nnuUtuilM  i 
andogiM  applioablo  to  otbcr  sjndcmii  of  goirernmrnt,  h  moat,  inara  than  any  othar,  to ' 
iU  onii  Intcrpretar  aeoonilDfi  to  it*  itxt  uui  ttu  fiutiaf  tkt  auc 

"  Fiom  tliMe  tt  will  bf  tr«a  tlwt  tbwcb>racl«ri*tic  poculiaritlataf  tin  CDnatitnUon  t 
I,  Uk  nwle  of  it*  fotmatioii  ;  S.  tlie  iliriitiou  of  Ui«  rapreino  poirtn  of  gortmnwnt  1 
tWTwb  thr  SMa  in  tbHr  unildl  upacity  miii  th«  BUtea  in  tlicir  individual  capacitia 

"  1,    ll  waa  fuTtiud,  not  by  the  gavcmniinit  of  tho  oompoiMit  Slataa,  aa  the  Foder 
gprwMptBt  for  vlik'h  it  waa  aalwtitiitnl  whn  fnrmiHl.    Nor  v^x it  tiimind  b;  a  majoril; 
of  the  peopis  of  the  Uiiitad  Ststoa,  aa  a  itiiiglv  uonimunily,  in  Ilia  nianaM'  of  a  oonaol&j 
dat(0  goircnuaoiit. 

"  It  «ai  fMtned  by  Iha  Statai^  that  ia,  by  tlia  pcoplo  in  (ach  of  tho  Statat,  acting  is , 
thdr  lM||h«*l  *ovai«ign  <spH;it7  ;  and  tumiad  conatniuontly  bjr  Iho  aanio  aathorilj  whid 
fomad  tho  iJUta  DMittitutiona. 

"  Baing  thna  dcriTcj  froon  tho  aaoie  nonraa  aa  Uw  countitotiona  of  thr  Slats,  it  baa 
vlthln  Mch  Stata  the  aiina  aatbarityai  At  oonstttntion  of  the  Stato ;  and  ii  ai  mitcti  • 
conalttulion.  bi  tha  atrlcl  aann  of  tha  ttnn,  «ftliin  ita  pitMilbed  tfdieta,  aa  tho  conatitu* 
tionaof  tho  tilalM  an*  within  ihtdr  i«a|iaotiTt  *|iliotaa ;  liul  with  Ihiaobriona  and  aaaaorj 
tial  iliOcrEnoc,  Hal,  triwg  tt  tmyaU  ammg  lit  SMtt  n  tktir  JiigJUM  anatr*^  > 
aad  ooMtitating  tha  pBOplothtnolono  people  for  «nain  purpoaca,  ll'taanot  bat 
ear  annnllad  at  tho  will  at  tha  8tataa  Indlvidnally,  a*  tho  conatiuitioa  of  a  Slata  m^  1 
atlMtiulivMiial  oill. 

"3.   And  that  iidindaatbaaBpcamapawaraofgoTaniaaMtbatwaanlhoi 
of  Iba  Vmttl  Staica  aad  tlM  gmwaanenU  of  the  iadividual  Stataa,  ia  auapFd  tat  i 
liuaof  tba  Iwatrwnnwt;  tbapowaniof  war  aadoflaxatian,  of  oommaKe  and  of  tr 
and  otb«r  tnaawtatcd  powcM  *««tod  In  tho  gOTcniment  of  tha  tTnitrd  Stntn  bail 
of   aa  hLicb   and   aoTirrtl^  a  character  aa   any  of  tho  powen  mervod  to  tho  State 
gwraminonta. 


800 


CONSTITDTION  OP  TBE  HKITED  STATES.  [BOOK  ITt. 


"  Nor  ti  the  govcniincnt  of  the  Uniltd  Statnv  cmt^  bj  th«  ConaUtalUnt,  In*  * 
gOTrmniFnt  in  ttie  attict  trnae  cf  tlie  tmn.  uithm  Uio  tfbcn  of  iu  powBR,  tiiui  tb« 
jOTcruiiiunU  cnaleil  by  the  oonititutioai  of  lh«  Statu  »rt  nithin  their  wrcrml  ^hett*. 
It  iA,  lik«  Uinn,  «r]pi>i>Ml  InU  UglnUllTv,  •itciillvr^  •nd  Judiclitry  ilopartintntji.  It 
j^optrato,  like  th«in,  din«tl]r  oii  penotuand  Uiing«i  Auil.likathem,  UhMateommMxl 
k  phyrical  hnx  tor  cMoating  the  po'avn  tmnmittnl  to  it.  The  oonranent  vpctitka  \a 
Jn  CUM  la  onn  of  the  fcntun*  touldng  the  pcvuliaritj  of  the  ayitcm. 
"  Bstuvm  Ihme  ililR^rviit  uniiHlltullona]  ipivmiiueDt*,  —  At  un*  operating  in  all  tke 
•tte,  lh«olheno;ientiiigMfKntely  inMvh.  witli  tha*ggr>g>tci>o»vnaf  fcovM^iivnt 
[Mded  brtwna  tbim,  —  itcoolil  not  «ao»pe  attention  that  contnxnniea  would  ■»>•  toft- 
ling  tha  bonDiWiu  ot  juriadUtian,  and  that  aont  provudon  ougjUt  to  b«  made  foe 
fneh  ofleiirT*ni:'i's.  A  pnUlioal  ayiit4tni  that  doca  not  proiide  for  a  peaceable  attd  anllior^ 
itatiT»tf<rniinationot(iccuniig><iontraT«nlM  would  not  b«  mora  tlian  the  aWIowof  a 
gotnniuvnt ;  the  olg'Kri  and  and  of  a  real  govenuDBUt  b*bg  the  aubatllulioD  o1  h« 
and  order  tot  unrertaint;,  oomfnnon,  and  Tialenve. 

"That  to  ha*e  left  a  flnal  dodiioo,  in  nich  caaet,  tocaehoftheStatd^  then  thtcteon 

andalrandj  twenly-foiir.  could  not  fail  tauako  theConatttutianandlmof  tlMDbiied 

1 6latoa  d  ilbrrnt  in  dilTcnnt  8lal«*,  wa*  obvlooa ;  and  not  laaa  obvioua,  ibat  thla  dlrmlly 

'  indeiirudont  dedsiooa  muat  altogellier  diitraot  tlie  ggsreriinienl  ot  the  Uulcu,  and 

lily  |nil  an  end  to  the  Union  ttHlf.     A  usifonn  autbarity  of  the  1am  u  in  itadf  a 

Ital  princtplo.     Some  of  the  tnoat  important  Ian  oonld  not  be  pattioliy  executed. 

hoy  niURt  b*  asMutod  In  all  tb*  Statai,  or  thay  oonhj  be  duly  urcuted  in  none.     All 

n|intl  or  an  exoif«,  tor  exaiapte,  if  not  In  fait*  in  tuiue  Btaln,  would  be  defeotod  tn 

elbvni.     It  ii  mill  Iciiawn   Hint  thi*  waa  auioiig  the  liuton*  of  exprttoaeo  which  liait  « 

riuiary  inOueuce  in  bringing  aboul  the  existing  CoDMitatlion.     A  loa  of  it>  pneral 

nthority  iroiild  morDorer  iwira  tha  axupratinff  qncitioaa  bottrem  thaStata  holding 

Ipoita  for  foi*l|n  commem  and  tha  o^ioitiiiiu  StnU*  wltbont  Ihani ;  to  wlikti  at*  n«» 

ilad  all  tha  inland  SlaU^  nacawarlly  cairying  on  their  foivign  oommnoe  through 

r-otber  Stats. 

"  To  have  made  tho  ilnriiioni  under  the  authority  of  the  iDdivUiul  StBtMco.«tdlnBta 
in  all  «a«i*i  with  d>wi*ioiia  under  ihr  nnlhoiiy  of  Iha  UnilMl  etalM,  would  niWTeidaUy 
produce  cull i Kleins  itiiMtii|«Ilt>lr  with  IhepMoaof  aociely,  and  oitk  that  ngataraBdofll- 
eieuC  adiuiiiistratiuii  which  in  of  lh«  «nenoa  of  he*  goTemment*.  SoeoM  oonM  not  be 
■voided  in  which  I  miiiiiteTial  olUuer  of  the  United  Slate*  and  the  eormpoiiiiwt  oSeer 
of  an  individual  Stale  would  have  renoonntor*  In  aioentii^  eo«IUelln|t  ilterMa,  tho 
IVHiilt  ot  wliich  would  deiwnd  on  the  oompwatln  Chm  of  the  toeal  p»*«t»  attenilinK 
them,  uud  thut  a  cooualty  d«iwndiug  on  the  political  ofiiaioM  and  party  feelings  in 
diiTert'Ot  8tut«, 

"To  have  referred  over;  elonhinff  dodiloo,  andtr  the  two aOthoritU*,  fnra&nal  d^ 
diion  to  the  Slalm  oi  i-irlte*  i»  the  Contlitnlion,  woolil  be  aU-niM  witb  drUy^  with 
inconveiiiener*.  and  with  •'■[■•iisra  amounting  to  a  jirohibitiou  of  the  (>i|»di«nt ;  not  to 
menliAn  Ita  tendency  to  im|wir  lh«  lalataiy  reneralioQ  far  a  ayalem  R(|niring  audi  he- 
qeeiit  Interpuailion*^  noe  the  dcUoate  qiHitlona  which  mi|^t  {weanit  themadws  ai  to 
Uh  totm  <t  ilaliBf  the  appMl.  and  ai  to  the  quoram  for  deciding  IL 

"To  hare  traited  to  atgotlatkm  lora^juXlng  dli^ulaa  baiwMn  the  govaramant  iif 
the  United  States  asd  tha  State  goemiiMala^  m  bMwM«  indtpekdonl  aad  aeparala  nt- 
ereignliei,  would  have  kat  algbl  altoittthtr  at  a  oonaHtution  and  goemmntt  for  the 
Uuion,  and  npanad  a  direct  road  froana  hilureof  thatiaaorttotbetiMmiira^iIehttwcai 
natiMit  vliolty  iiid«(«ndrat  of  and  alwn  la  ach  othtr.  If  the  ids  bad  tb  orlgia  in 
the  proceM  of  adjuslaoent  between  *Fpant«  btaaebM  of  the  Mm*  gorenunwt,  tlio  anal' 


en.  IT.} 


FINAL  INTER  PRETBB. 


801 


ogr  cktinly  failt.  Id  ibe  cue  «f  ditpuW  Wtw«en  indepondcnt  pntt  or  th*  ttme  gov- 
•mmcnt,  ncltk«r  pit  bciiaj{«b1elocgiuaiiUDatcita  will,  nor  the  Rnvprnmrait  tognooHd 
iritbcvt  >  concitrTMic*  ot  th«  parU,  nocoally  biiug*  A\«iiit  un  iii.'ciiiiiiiiwlaliou.  lo  >U»> 
pDtM  tnliktfii  B  8UU  gDTaramfttt  »nil  Iha  govvmnitnl  ot  th«  L'uited  Stxtn,  lb*  c*M 
i*  pnolicnUy  lu  w«Jl  ■>  tliaoivticiilly  iliffi-reiit ;  each  party  |xMBnsing  all  tfaf  depart* 
lucntu  of  nn  organieod  gonmniFUt,  le^lativr,  eitcutivc.  and  judidary,  and  having 
each  a  phyii«nl  force  to  auppovt  ita  prplcnijoni.  AltboDgh  tb>  Ihuc  at  acgoUatioa 
nilj[hl  noinctlmta  avoid  tliui  axti«iiiit;r,  how  often  wniild  it  hapfwn  amonR  no  mnnfi 
Suir^H,  that  an  untcooniniMlatinfl  aplrlt  In  lonm  «uutd  ranilvt  that  tMOurcti  uiiaTallliig  t 
A  contrary  tupiKnitioLi  OQuld  nal  accord  with  a  knowMgCor  haman  uaturc  ur  tlia 
(jvidvuce  of  our  DKU  )>olitiFiil  hittory. 

"The  Connlitution.  uol  relying  on  any  of  the  prrcnlinH  modlfli-atloiK  for  Ita  ntcand 
■Qccruftil  i>|>iTrHlii>ii,  hiu*  vxprastly  dfcland,  on  th««iM  hand,  1,  'that  IhaCoiiMitullaaJ 
and  th^  lawM  m-.t'lv  iu  pursaaiiO))  IhetMf.aud all  tti>ti«i made uad«rtheialhorflynrib«^ 
United  Stntcs.  utiall  br  tilt'  tuprame  law  ot  the  Uad ;  9,  that  tlir  jiidgri  of  mry  9tat« 
ahall  be  boDud  thcrpby,  nnything  in  the  MiuitltntJon  and  lawa  of  uiy  Slate  to  the  con- 
tniTy  not  aril  liaundin)!  ;  3,  thntthnjadlrial  jionrofthc  ITnlttHi  Stulea  ihnll  txteJid  tooHj 
tmet  in  bir  and  (i^iijtj  arMng  utidrr  th*  CoQ«litatloD,  tho  la»s  of  th<  United  StatM^ 
and  Ireatin  iriudc  nniln'  thvLr  aulburily,'  lie. 

"On  thr  other  band,  aaaieciirityof  tho  riKhtaand  pawenoftlieSUt*^  ii)th«rindi> 
*lidual  cMpadliei,  ii|[aiiiiit  an  undue  prcpondenuiRoof  tha  pov«ni  fpunltd  toth*  Eoveraaj 
mmt  «Ttr  th#iii  tii  thi^lr  iiiiil*<l  ctpacliy,  th«  ConMitutlon  ka*  ivliod  on,  1,  lh«  i 
nhility  of  the  iFDalon  and  rrpm«utaliirca  In  Iha  1«gislatutv  Of  tho  Untied  StaUa  to  thsl 
k^aturoand  people  of  the  Btatn  ;  S,  the  mpondbititjof  the  Pnildtrnt  to  the  | 
of  Iha  I^Bitad  fltatca ;  and,  S.  the  liability  of  ih*  oxMativB  and  jadidal  fiuKrlian 
of  tbeUnit«l8tMlMlolnii>rx<.'bm«nt  by  therrpmratatiTMor  thep««ple«f  UwStUtm 
in  aD«  bruieh  of  tlio  legialature  of  the  Unitnl  S(al«^  and  trial  by  the  rqimtolatitw  of 
ifce  Slatei  in  the  other  brunch  :  the  SUte  ftnctionitriai,  logialatlre,  executiTc^  and  judi>i 
dal,  b*tng  at  th*  Mmc  time,  in  their  appointnMoit  and  rMpotittblUty,  altogatkcr  joda- j 
ptniltnt  of  th*  apDcy  or  *uthority  of  tiM  Uoijad  SUtta. 

"  Hov  tu  tliU  Mnotiira  of  the  gorminient  of  Ibe  tTnitol  Statn  Ii  adequate  and  tab  \ 
tut  ita  objaeta,  time  alone  can  ahiolutcly  detemuM.    Experience  leFnu  to  hare  iihown, 
tint  vhalam  may  grow  out  of  fntnie  Uagt*  of  ear  national  arrci,  thct*  io.  u  ycU  ft  . 
aaBtcieot  ooiitnl  fa  the  popnliir  «-ill,  orrr  th*  aieentlTa  and  Icgblatlve  dapartownla  i 
tbegOTfrnnent.    When  the alimanil  aadilion  lanverepamfd,  inconttnTentlon  tot 
opnko*  and  (mUnga  of  the  connmnit;,  the  fint  thclions  that  cDsut^  put  an  «nd  t»l 
tfaiai.     And  whAlcTer  may  hara  betn  tho  ehanettr  of  othar  aeti^  In  tha  Judgment  of  ~ 
RMUr  e(  ua,  ft  ti  bill  lni«  that  lli^y  h>T«  gmmlif  aoeonlad  with  tbo  nam  of  tha  ma* 
)adl]r  of  the  StatM  ud  </  the  prople.    At  the  prewnt  day  it  M«ma  well  andcrilood  that . 
the  Uw«  whkli  ban  ereatnl  rooM  diBitufactka  bare  bad  a  like  miction  without  doon  { 1 
and  tbit,  wb«(ber  »nlinu«d,  varied,  or  rrpcolfd,  a  like  proof  will  be  genu  of  the  lyH'J 
pathy  and  rarponaiMlit  y  of  tha  i«i>itemitatlTa  body  to  tha  conttitaant  body.    Ibdaad.  tht' 
gnat  MnpJalai  now  b,  afjaluM  tbe  mult*  of  ihia  sympathy  and  MpondUUty  is  tha 
Itfftlattre  policy  of  the  natloa. 

"With  respett  to  the  judicial  power  of  th*  tTnfied  Statoa,  and  the  oathority  of  tha  I 
8«pmne  Court  fo  nlation  to  the  bMindary  of  Juriidlcllnn  b«tw«an  Ih*  Fedtnl  and  thl 
State  KorenimcDta,  Imty  b«  pannltt«d  torefrr  totb*  tbirly-nintbottabccrof  tbaFederviJ 
albl  for  the  liithl  in  wbiih  lb*  euljtctirM  ngatdrd  by  iti  writer  at  the  period  when  thO 
Oonatltulion  wm  depniding ;  and  it  b  brliered  that  tbe  mbo  wm  tbe  premiiliiig  view 
then  taken  of  It,  that  tbe  Mine  rbw  ha*  «o«tiaiicd  to  prevail,  and  that  it  dote  to  at 
tU*  dncy  notwithManiting  th*  MtisaBt  uuapikiia  to  It. 


S02 


coNBTrnmoM  or  the  united  states.        [book  m. 


"  But  it  U  ptrtMtly  eaiuMmt  with  UieMiK^ninnofthiB  i<cwer  to  llie  SutMaMCamrt, 

fa  ccMS  failing  irithin  tbe  oonns  of  ita  funcliotw,  to  BuiuUtiii  tliut  Uio  jwwsr  hM  Mt 

alvaj-s  liHJi  nghtlf  cxFrciscd.    Tg  uy  nolhing  oftbe  periol.  !ui[i[<ily  it  kliurt  onc^  whni 

adgca  ia  tbcir  >rau  did  not  aluitiiiD  from  inlerapctnta  and  [arty  hniiiiigua,  (qn>lly  tX 

•rlmcK  witli  Uioir  dslj  an<I  ib«Ii  dl^itj,  tlitn  Iuvb  linen  octiiuiottal  dwutooit  fnnn 

h«  btDch  wbich  li*v(i  iociimd  Mriuu*  mid  rx(iin«lv«  di«tppiob>tlOTi.     Still,  it  vould 

I  ibil,  with  Imt  t»m  Fxorplions,  the  uoutu  of  tli*  Jndidarj  bas  bwn  blth(in«(iu- 

tainnl  by  Um  pToaninrnt  (pdh)  of  th»  natioii. 

"  Tdoie  who  have  dcniedor  doubtfd  the  Rnpremiicy  of  tbo  judJcUl  powtr  of  tLe 
r United  State*,  uid  dinounce  >t  ths  nmr.  tliiioaiia1llFyJn;i  [mrrt  inaStatt^  mna  not  to 
I'lifirn  Hnltti'lriiily  tdTi-r(»d  to  (tin  nlln  JiivllU'iciK'y  of  ■  Hiipn'iiuuiy  in  •  l*w  of  lli*  land, 
'llliout  a  Hupnmouy  in  tlie  «xi<miltoD  and  ex«iatiaa«f  th«Uw  ;  iioMo  ibe  doUMtion 
of  uU  ec|nipoiiK  betw-HH  th«  Fvdonl  gnvmiinont  and  the  Stat«  f^vtmncaU,  if.  ohiltt 
tbe  functionnrin  of  tba  f  ojonl  'sovarniaeiit  are  directly  or  indlMotlj  dcctol  by,  ud 
rrxpontiblo  to,  Urn  StatM,  and  the  functioDiuiM  of  the  atatm  Mv  in  thfir  ntipointnicnt 
Mid  n>*i>on»ibi]ity  wholly  iiiilHi>*nilDnt  of  ihaHnilod  St«t««,  nooonalltulional  control <^ 
any  uirt  Ivluiignl  to  the  Unilnl  States  OT«r  the  State*.  VtiAti  aucb  aa  Mjanication,  It 
ia  cvidntt  tbnt  it  would  be  in  the  power  of  tbe  States  indiridiMtly.  to  |nm  uaantfaorind 
laws,  nnd  Id  carry  ihi-m  Into  oamplete  offset,  anything  in  the  ConititiUitfn  and  laiva  of 
tlio  Unitiid  StHli^H  U>  tho  contrary  nMwlth*tandin)(.  Till)  Kould  be  a  »u]iiry[m  powM 
in  lis  plenary  chanK'li'r ;  and  wh«tht>r  11  )iad  ill  final  MtiA  through  tbt  li(i«latif«k  M- 
WUtiva,  DrjuJlciiryorgaDof  the  Slate,  vvuld  b«  e^oally  fatal  t«  lb«  cogutiutad  r«k- 
tion  betwcrn  tlic  two  gorcmnwala. 

"Should  tlie  proiiiiona  of  tha  Ocoittftntian,  a*  hen  reriowcd,  be  found  not  to  aecnn 
the  itoTcmniDul  and  rlj[hu  of  th«  Statra  againct  naiirpolinii*  and  abnmi  nn  thr  [an  of 
the  IJnItnd  Ktalni,  llw  final  r«Mrt  urithin  the  purvtaw  uf  thn  Conitltntioa  lica  in  an 
amcndmcnl  of  tbe  Conititution,  acoemlinff  to  a  proccw  Ap^ioablo  by  the  Stata. 

"And  in  tbe  event  of  a  failure  of  oveiy  mnitltullonal  luort,  and  an  accumnUtioa  of 
tuuriiatlnna  and  abuini,  nndrhcig  pMtivn  obwlieDce  and  non-rvaintancB  a  Krnatur  cril 
^than  rwiaiancii  and  rvirolution,  iImk  can  reinnin  but  ouu  n^wirt,  th«  l<ut  of  all ;  as  a|k 
al  from  tba  canotlhid  obligation*  «f  tbe  oonitiluttonal  oani{M«t  to  origiaal  rig^t*  uol 
he  law  «S  tdf-pRwrvation.  Thii  ia  the  ultiiiut  ratis  under  all  gortntKtubK  abtAcr 
didiUod,  eonfcdetatvd,  or  a  oomponnil  of  both ;  and  it  caiuint  ba  donbted  tliat  ■ 
ringlo  mombtr  of  tbt  Union,  is  tb«  oxtrrniity  tiup)x>atd,  but  in  that  ecsly,  woiiU  km  • 
right,  aa  *n  ettia  aniJ  ultn  conitilntic>nal  right,  to  make  the  ajipeaL 

"Thin  bdnga  us  to  Ihe  eitpf>]ient  lately  adnutoi,  rhUk  daiai  for  a  rin^e  Slate  a 

light  to  appeal  if^nst  an  exercise  of  jwmr  by  the  (tovarunent  of  Uie  Unllod  ^tf«, 

dded  by  the  State  tobnuncowititBtioaal  tolka  p»tMlolheoon<titutianaI  oomfact  i 

Fkb*  dadiion  of  tht  8Ut«  to  b«*e  tba  alTeel  d  iiiillifyiKg  ttte  act  of  the  pivcmmnnt  of 

th*  Unitmi  Statn,  ntilna  the  dedaiiM  of  tho  Stato  b*  tavcnad  by  lhi«f>fonrtli(  of  Ibc 

partM*. 

"ThedUtingaiahed  namnaand  kigit  aothorilin  which  appear  to  bare  aiwrled  and 
giTCM  «  practical  koi*  to  thb  doewina.  «i>Utle  it  to  *  ntfeet  whkb  it  nrigbt  bo  dlOoilt 

alhcrviiD  to  t»ri  tar  it. 

"  If  the  dwtrinx  wtre  tobenaitwtaad  M  raqoirlng  th*  thTev-fourthi  oTlliFStatei  t« 
Bustain,  intltwl  of  th%t  pfopoMkn  I*  t*Mi*i^  th*  dadilav  of  tW  appealing  Stale,  the  de. 
daioB  to  bo  without  eOtct  ilnrlug  Uio  appMl,  It  wonM  be  inadMit  to  remaric  tUt  Ikl* 
«Stn-Maitinitlo«ul  oanrM  night  writ  gite  way  to  that  raukod  out  by  tW  CMatlmtlon, 
vtkbaatlMriiBi  two-tbinbortlM  Stata*  to  inatilBt*,  aad  iluwfanrtba  to  albeiaita,  an 
■nendnwatof  llMOiiiMtit«tian,ertablJiUBgap«nnanci»t  nkof  Ik  blgtinl  authority 
I  plao*  of  t»  ifnipilaT  prvonttat  d  trntUaeOott  only. 


CH.  IT.] 


FINAL   INT13tP&irrt3L 


8oe 


"  Ktt  It  b  nnilvntood  that  thii  nullifying  iluntriiw  import*  that  tb«  dMwion  «t  th» 
Stale  ii  to  be  pmtamrd  vatU,  nnj  that  it  ovcmlea  the  law  of  the  Unltrd  StaUB,  i 
oterni]od  by  threc-faurthi  of  thr.  Slate*. 

"Ouimon  bo  necMury  to  dnnionMntii  tlin  loadmlMibiliijror  tiich  adocMti*  thu^ 
(hut  it  pot*  it  Id  the  [owcr  of  the  aniallart  fmction  oTcron«.fcrtinh  of  Ihii  Unlwd  StatM^ 
tb*l  la,  of  Mtcn  8tatn  out  of  twraly-foar,  to  g$v«  the  Uw,  aad  ma  th«  Coiiitilulion, 
to  ntcmtMa  StatM,  Mch  of  the  wvcntMn  baring,  as  partin  to  the  CoiiititaUMi,  t* 
tiiaal  right  with  tadi  of  tha  lerai  t«  Diponnd  it,  and  to  iniiat  on  the  eipoatioa  I  That 
the  acvtn  night  in  (mrticuUr  initonae*  be  ri|[bt,  and  the  KTonlcen  wrong,  U  morn  than 
PmiIUb.  Rut  to  nlaMlah  a  jioritlT*  and  pvnnanant  rain,  glrinff  nwh  •  poww  to  Muh  1 
a  ittiBority  over  sacli  h  irmJDrity,  wonlil  uvcrtun  the  first  principhi  of  fm  gavemin«i)t, 
and  \m  prxiio*  necEisiLrily  Dvertum  tUv  goveniiQMit  itaelf. 

"It  i*  to  bo rccoUwt«l  that  theCon«tiiutioji«a»propaiipd  to iht  pi»pU of  tlw Stntna 
aa  a  kAoI^,  and  iinanlmoiTnly  adoptwl  by  Ili»  Stat**  a*  a  irluil/,  it  Mng  a  jnrt  u(  the 
OMutilution,  (liat  not  Idui  than  thirs-fourthacf  thaSlatMti1iuu1dWt.'uii)]H'tifiit  toiiiakit 
■ny  alteration  iu  wlial  had  bwn  unanimously  ^re«d  to.  So  grrat  ii  the  eaulion  on 
thi*  point,  that  in  two  caHi  where  prculior  inlemti  were  at  aliikc,  a  propOTtion  oron 
of  thrM'founba  la  iliilruitcd,  and  unanimity  nvjulmd  to  Blah*  an  alteration. 

"  When  the  ConatltntiDn  wm  niliijiti^J  an  n  wlinte.  It  i>  otrtaiii  that  then  trm  many 
part*  witidi,  if  Kpunitrly  propoiwil,  would  luvu  bwn  promptly  rqected.  It  I*  Cu  frnm 
■mpoaaible  thai  vTcry  iwrt  of  ■  coualitiilioii  mif[ht  be  r^Jwlcil  by  a  majority,  and  yet 
takeai  together  m  a  whuli^,  bf  iiTLanimotisIy  oc-Ci^pliMJ.  Vnt  conittlutiona  will  rairly,  if 
*fm,  be  farm■^d  without  reciprocal  concnnious,  willioul  'sttii;!;!  tondtlioncd  on  and 
halandafi  each  other.  !■  th«v  ■  conititution  of  *  hdkIc  Stjiio  out  of  the  twenly'bor 
that  would  bear  the  exiwtiment  of  having  Ita  ccdnponent  parti  eabmittnl  Ui  th*  peopto  I 
nd  wpantely  dMtd«d  on  I 

"  What  the  ht«  «f  the  ComatHatton  of  the  I'nitcd  Sul*a  would  be,  if  a  nnidl  propor. 
tlon  of  the  Statca  oonld  exiningn  part*  of  it  partlcnlatly  valued  by  a  larga  minority,  can 
hia««  bnl  oim  aoawar. 

"  Tba  difficulty  1>  not  removed  by  Kmiliug  tlw  doctrioa  t»  a*M«  of  eonidnotioib  i 
How  maay  oana  of  that  sort,  involviiig  cardinal  proriaoaa  of  the  Conatitutioii,  hanl 
oecntrod  '  How  waaj  now  exlat  I  How  many  may  liemfUt  apttng  tip  1  i)«w  rowqrl 
■lubl  be  ii^[mioiuly  emiMi,  If  tntltkd  1«  tho  piivikga  of  a  doeiaioii  in  tha  medal 

"  It  it  certain  that  the  pr1iid[ile  of  that  nods  wonid  not  rMch  further  than  U  con- 
t>m[dat*dl  If  a  aingje  Slate  Mtt,  of  right,  n>iuin  thtug-foartht  of  its  co-State*  ta«V(r> 
n1*  tta  MiKMllian  of  the  Omtitullon,  bacjiuw  that  proportion  it  uuthorlwd  to  snend  j 
ft,  weald  Iha  plea  h«  Iim  pbntthl*  that,  an  the  (^onililution  woi  unaninonily  ■ 
Uibcd,  it  ought  to  be  nnonlmouiily  uxpuiindi^l ' 

"TSa  reply  t« all  inch  snggcattounHcms  tobeunamidflbl*  and  ImalMlbU;  that  tbal 
Owttlmrinn  baeompact ;  that  it*  tvxt  i*  to  be  l^xpaur><lp>i  o'.-cuiiliiu;  lotliepnTlaionai 
far  expowadtng  it.  —  making  a  part  of  the  Rompact ;  mid  that  none  of  the  partleacan  j 
rigtitf^Uf  lenouno*  the  FX^oundtug  provlalnn  morn  iKan  any  other  part.  Whctt  tueh  j 
a  rtftht  aecmea,  ai  may  aocrui!,  it  muat  grow  out  of  abuaaa  of  the  compact  idcaangthaj 
rafiiren  fieiin  thalt  baity  to  it." 


8M 


cossTiirno.v  of  the  ukited  nates.        [dooe  in. 


CHAPTER  V. 


BDLES  OP  niTGBPlIBrATIOX. 


§  397.  Is  otir  future  commcntArieg  upon  the  CoiistiluHoti  <re 
shall  treat  it,  Uit^o,  as  it  ia  dcnoininatctl  in  the  inslrument  itself, 
ji«  a  Co^HTiTunos  of  goveninient,  oniaine<i  and  estnlili^lied  by 
tlic  iieo))le  of  the  United  States  for  themselTes  and  their  poster- 
ity. '  They  hare  declared  it  the  supreme  law  of  the  lan<l.  They 
hare  made  it  a  limited  government  They  have  defined  its  au- 
thority. They  have  rentrained  it  to  the  exercise  of  certain  pow- 
cm,  and  reserved  all  others  to  the  States  or  to  the  people.  It  is 
a  popular  government  Those  who  admittiater  it  are  resporiBifale 
to  the  peojile.  It  is  as  popular,  and  just  as  much  emanating 
from  the  [K'oplc,  as  tlie  State  guveniiiiouts.  It  t»  created  for  OUQ, 
purpusL%  the  Slato  govemmODts  for  another.  It  may  he  altered 
and  amended  and  abolished  at  the  will  of  the  people.  In  short, 
it  was  mnde  by  tlic  people,  made  for  tlie  people,  and  is  responaiblo 
to  the  people.* 

§  398.  in  this  view  of  the  matter,  let  us  now  proceed  to  ooa-| 
sider  tlic  ruI<.-8  by  which  it  oufiht  to  Ite  interpreted;  for  if  these 
rules  are  correctly  laid  down  it  will  save  vx  from  many  cmbar- 
nssmcuts  in  examining  and  dcfmiug  il8  powera.  Xfueh  of  the 
difficulty  which  has  arisen  in  all  the  public  diecutisiona  on  thisi 
tnbject  has  had  its  origin  in  the  want  of  some  nnifonn  hiIm  of 
interpretation  expressly  or  tacitly  agreed  on  by  the  disputants. 
Very  diGTereut  doctrines  on  Otis  point  have  been  adopted  by  differ* 

*  "TlM^Tmiiaentof  theUaiOB,"  uyi  Mr.  Cliicf  JosUee  MmiImII,  fai  ddlmtng] 
tb« opinion  of  Ibe conit  In U<Ckl]ixli  r.  Marjliad,  4WImL  314;  "bfniplMlkallj'Mdl 
Ik!;!  KOTornBiaitft  til*  |ipo|il«.  It  enunatts  (rom  tfami  ;  il«  [nwpn  irs  gtuitol  tif  | 
iImb,  and  w*  i«i  1i«  rawciMd  diracflf  on  tlieni  uJ  for  tliaii  b«neGt."  Id.  jM.  US ; ' 
tM  slw)  CobcM  «t  Mrginia,  6  WhcM.  R.  au,  4tS,  IM. 

"TIh  gorenwMdt  «f  tbe  Unitfil  Siatm  «m  oncttd,"  air*  ^'-  ChaacsDor  Emt, 
with  Djool  rorca  uid  «DMra«ir,  "  by  tb*  fm)  vdo*  u>d  tho  Joint  vitl  ot  lbs  pMld*  of 
AawrlM  lor  tlidr  oetnaMn  itttaa  anil  gmnl  wdbn."    1  Kmt'a  Coonn.  Lm*.  lO, 

*  1  bar*  iMcd  tht  txpnadre  (rardi  of  Hr.  Webttm,  dMtninjt  thnn  u  ouKt  •*  »nj  i 
ttutt  ombt  to  DMd.  am  WcUUr**  Sjmihn.  pp.  410,  41S,  il»  ;  i  UUeCt  DtbiW, , 
S33,  843. 


ca.  v.] 


BOLa  OP  irrTERPBCTATIOX. 


305 


ent  commentatoni;  and  not  unfroqnoatly  very  different  langttago 
held  hy  the  aamo  partien  at  different  perioda  la  »bort  the  rules 
of  interpretation  haro  often  Iiecn  Bhifted  to  suit  the  emergency; 
and  the  pasaions  and  prejudices  of  the  day  or  the  favor  and  odiaui 
(A  ft  particular  measure  have  not  unfreqncntly  fumiahed  a  mode 
of  ftrgiuncnt  which  would  on  the  one  hand  K-avc  the  Constitution 
crif^led  and  inanimate,  or,  on  the  otlivr  bund,  f^vc  it  an  extent 
and  elasticity  subversive  of  al!  rational  boun<)aric8. 

§  399.  Let  U8,  then,  endeavor  to  ascertain  what  arc  the  trao 
rules  of  interpretation  applicable  to  the  Constitution;  so  that 
wc  inny  tiare  some  fixed  standard  by  which  to  measure  its  powerv, 
and  limit  its  proliibitions,  and  guard  its  obligations,  aud  cuforoo 
its  Bcwurities  of  our  rights  and  liliertics. 

§  iOQ.  I.  The  lii-st  and  fundamental  rule  in  the  interpretation 
of  all  inatruracnts  Ja,  to  construe  them  according  to  tlie  sense  of 
the  terms  and  the  intention  of  the  parties.  Mr.  Justice  Itlack- 
stone  has  remarked  that  tlic  intention  of  a  law  is  to  be  gathered 
from  the  words,  the  context,  the  subject-matter,  the  effects  and 
consequence,  or  the  reason  and  spirit  of  the  law.'  lie  goes  on 
to  justify  the  remark  by  stating,  that  words  are  generally  to  be 
imderstood  in  their  usual  and  most  known  signification,  not  so 
mttch  regarding  the  propriety  of  grammar  as  thoir  general  and 
p<^)ularuso;  Uiat  if  words  hapj^en  to  be  dubious,  their  meaning 
may  be  established  by  tlic  context,  or  by  oomjiuring  them  with 
other  wortls  and  sentences  in  the  same  instrument;  that  illustra- 
tions may  be  further  derived  from  the  subject-matter  with  ref- 
erence to  which  tlie  expressions  are  used;  that  the  effect  and 
oonsc<{U«nce  of  a  particnlar  constniction  is  to  be  examined,  be- 
cause, if  a  literal  meaning  wonid  involve  a  manife-st  absurdity, 
it  ought  not  to  be  adopted ;  and  that  the  reasiHi  and  spirit  of  the 
law,  or  the  causes  which  led  to  its  enactment,  are  often  the  best 
exponents  of  the  words,  and  limit  tlicir  application.* 


<  I  ta»tk.  Cnam.  C9.  CO.     Sm  •!«>  Aj-Mc'i  Puidocti,  B.  1,  tit.  4,  ik.  20.  Ac  ;  1 
Doinst,  Prtlim.  Book,  p.  S ;  N.  TtmUm  om  (awi,  di.  IS,  p.  71. 

*  Id.  Sm  abo  Woodn.  EUia.  of  Jaris^  f>.  S4.  Kalo  of  ■  •liallw  nitlure  ■ill  b« 
found  Uid  down  in  VutoU  B.  3.  th.  IT,  &om  S  SOStofSlO,  «ilh  mortample  illuitn- 
tloni  OMd  moM  VHJouo  iiiuUAoMMna.  But  nota  f««<f  bUralsitiipMr  toM*  tomwt 
womwy  nd  oMsdiMOii.  Buon'a  AhMg.  tilli^  Sutnta  I.  contain*  an  eKoeUtnt  mim- 
BMJ  of  Ac  itilw  for  «onatralng  MalutM.  Donat,  alut,  oaotalM  Rian;  TaluaUo  iuIm 
ia  napoet  to  iai«ii>Mation.  Sco  hh  tnatiM  on  Lamv  cL  13,  (i  74,  Ae.,  aad  Pnllm- 
iauy  DUaoorw,  tit.  1,  |  3.  p.  S  to  p.  14. 
vot.  I. — 20 


80C 


COKSnTDTIOK  OP  THE  DK1TGD  STATES.  [bOOK  III. 


§  401.  Where  the  words  are  plain  and  clear,  and  the  flenae 
distinct  and  perfect  arisinf;  on  them,  there  is  generally  no  neces- 
sity to  hare  recourse  to  other  mcanB  of  intorprettitioii.(i)  It  is 
only  nhon  there  is  some  ambi^niity  or  doubt  nrisini;  fn>m  other 
sources  tliat  inteq>rL'tatioD  has  its  proper  office.  There  may  be 
obscurity  as  to  the  inouuin^,  froin  tlic  doubtful  character  of  the 
words  uBod,  from  other  elatiMC»  in  thu  same  Instrument,  or  from 
an  incongruity  or  rcfiuguaney  between  the  words  and  Uie  ap- 
parent intention  derived  from  the  whole  stmctiire  of  the  iiistrii- 
incot  or  it«  avowed  object.  In  all  each  casM  interpretatjon 
hMomes  indispensable. 

1^02.  Rjitherforth '  has  divided  interjiretation  into  three 
kiudit,  literal,  rational,  and  mixed.  Hie  lii-st  is,  where  we  col- 
lect the  intention  of  the  party  from  his  vords  only,  as  they  lie 
before  us.  'Ilie  second  is,  where  his  words  do  not  express  that 
intention  perfectly,  but  exceed  it,  or  fall  short  of  it,  and  we  are 
to  coIlMt  it  from  prohahl«  or  rational  conjectures  only.  The 
thirtl  lit.  where  the  words,  though  they  do  expreitB  the  intention, 
when  they  are  rightly  understood,  are  themselves  of  doubtful 
meaning,  and  we  are  twund  to  have  recourse  to  the  like  conjee 
tures  to  fmdoui  in  what  sense  they  are  usmI.  In  literal  interpr^ 
tation  the  rule  observed  is,  to  follow  that  sense  in  respect  both 
of  Uie  woi'ds  and  of  the  construction  of  them  which  is  agreeable 
to  common  uae,  without  att«nding  to  etymological  fancico  or 
grammatical  refinements.  Tn  mixed  int<*rpretation,  whirb  sup- 
poses the  words  to  admit  of  two  or  more  senses,  each  of  which  is 
agreeable  to  common  nsagc,  we  are  obliged  to  collect  the  sense 
partly  from  the  words  and  partly  from  conjecture  of  the  inten- 
tion. The  niles  then  adopted  are,  to  oonsh-ue  tJie  words  accord- 
ing to  the  subject-matter,  in  euch  a  sense  as  to  prodooo  a 
reasonable  effect,  and  with  reference  to  the  circumstances  of 
the  particular  transaction.  Light  may  also  be  obtained  in  such 
cases  from  contemporary  facts  or  expoaitiuna ;  from  antecedent 
mischiefs;  from  known  habits,  manners,  and  institutions;  and 

'  Book  S.  ch.  7.  1  8. 
{«)  In  Mtk  oMM  ibc  «ai4«  m*  ta  be     pcHrcllf  manifMt ;  uid  lb*  mam  U  trn* 


ttkMi  tu  tlia  RDM  <rhkb  Atj  urivisllj 
faoir  on  their  taa.  Lake  v.  Rolling  130 
t7.  S.  sea  i  I>OH*tt  n.  nctidi  R.  Co..  M 
i;,  8.  71.  Hmm  k|d*klMn  opoMtM  pro- 
({WOtiTply  nnt«M  «  itlSmnt  lot«mtlaa  to 


of  ooattitstiMrb  ninrffutt  v.  Coir.  IW 
V.  B.  St.  P<iTth«r,  ttuTbiiMM  ■.  Whil- 
voKh.1i;iT.S.  l!0;Hwda*eDt.Vriek- 
lain,  K  P.  8-  SSS. 


ce.  T.] 


RULES  OP  INTniPRETATlOX. 


807 


from  oUipr  sonrcM  almuvt  innumerable,  whidi  tnaj-  jastiy  itffect 
tho  jadf^cnt  in  drawing  a  fit  conclusion  in  the  particular  ca«e. 

I  408.  Interpretation  altio  mur  be  iitrict  ar  largo;  tiiou^h  wo 
do  nut  alwaja  ineiui  tlic  a&me  thing  vlicn  we  speak  of  a  alrict  or 
large  interpretation.  When  conunon  usage  fans  given  two  genned 
to  the  same  word,  one  of  which  is  more  cuntincd,  or  includes 
fewer  particulars  than  Ibc  otlicr,  the  fortnL-r  is  called  it»  Btrict 
•eoso,  and  tlte  la^r,  which  is  more  comprehensive  or  includes 
more  particulars,  is  called  its  hirge  sense.  If  we  find  such  a 
word  in  a  law,  and  we  take  it  in  its  murv  confined  sense,  we  are 
said  to  interpret  it  strictly.  If  wc  Uike  it  in  its  more  compre- 
henitivc  aentie,  we  are  said  to  interpret  it  largely.  But  whether 
we  do  the  one  or  the  other,  we  still  keep  to  the  letter  of  tho  law. 
But  atrict  and  large  intcrpretatiuus  are  fretjucntly  opp<j«ed  to 
each  other  in  a  different  aense.  The  words  of  a  law  may  some* 
times  express  the  meaning  of  the  legislator  imperfectly.  They 
may,  in  theii*  common  acceptation,  include  either  more  or  len 
than  his  intention.  And  as,  on  the  one  hand,  we  call  it  a  strict 
interpretation  where  we  mnteiid  that  the  letter  is  to  be  adhertNJ 
to  precisely,  so,  on  the  otlier  hand,  we  call  it  a  large  inteqtreta- 
tion  where  we  contend  that  the  words  ouglit  to  be  taken  in  such 
ft  senso  as  common  usage  will  not  fully  justify,  or  that  the  mean- 
ing of  lh«  legislator  ^  something  ditTerent  from  what  his  words 
in  any  usage  would  import  In  this  sense  a  large  interpretation 
is  synonymous  with  what  has  before  been  called  a  rational  inter- 
pretation. And  a  strict  interpretation  in  this  sonso  includes 
both  literal  and  mixed  interpretation;  and  may,  as  contradistin- 
guiflhod  from  tlie  former,  be  called  a  close,  in  opposition  to  a  free 
or  liheral,  interpretation,' 

§  404.  These  pleuH-ntary  explanations  furnish  little  room  for 
controversy ;  but  they  may  neverltielcits  aid  us  in  ntakiag  a  closer 
practical  application  when  we  arrive  at  more  definite  rules. 

§  405.  IL  In  i'ou«tniing  the  Constitution  of  the  United  States, 
we  an^  in  the  first  instAnce,  to  consider  what  are  its  nature  and 
objects,  its  bcu]>c  and  design,  as  appan>nt  from  the  structure  of 
the  instrument,  vit^'wed  as  a  whole,  and  also  riev«d  in  its  com- 
ponent porta.     Where  its  words  are  plain,  clear,  and  determinate 

>  Tla  fanealng  rtnark*  m  benn«»d  >lnuNtlat««M*  ft««B«Uu>tftvt]i'iliuthnlM 
of  Kafenl  Lnr  <B.  8,  rti.  7.  |  <  lo  (  11).  vtiirh  (wtMiM  m  vpiy  locM  upxIHoB  af 
llie  (pniemi  nUa  cf  iatnpictatlaii.     TV  whoh  <kifttr  dawm  u  sttcativi  ftnmi. 


COSSrlTUTlON   OP  THE  UKITKD  OTATES.  [bOOK  HI. 

Uie^  require  no  Interpretation;  and  it  aboald,  tberef(M«,  be  ad< 
niitted,  if  at  all,  with  great  caution,  and  only  from  necessity, 
eitlier  to  eocape  some  absurd  consequence,  or  to  guard  against 
gome  fatal  eviL  Wbcre  the  worda  admit  of  two  ttoniu-a  cocb  of 
which  is  conformable  to  common  uaa^  that  scnso  is  to  hfs  adopted 
whicb,  without  dopartinR  from  tbe  literal  im|jort  of  the  words, 
bent  barmoniiics  witb  tlie  nature  and  ubji-cts,  thu  scope  and  do- 
flign,  of  the  inBtrumcnt  Where  the  words  are  unambiguous, 
but  th<>  provision  may  cover  more  or  less  jrronnd  according  to  the 
iutL-ntioii,  which  is  yet  snbji-ct  to  conjecture,  or  where  it  may 
include  in  its  general  terms  more  or  IcM  than  might  seem  die* 
tatod  by  tbe  )<encrul  design,  as  tlint  may  be  gathered  from  other 
parts  of  the  iustruiuenlT  there  is  much  more  room  for  oontro* 
Teniy;((])  and  the  argument  from  inconrenience  will  probably 
have  different  influences  upon  different  minds.  Whenever  such 
questions  arise,  ihey  will  probably  be  settled  each  npon  its  owd 
peculiar  grounds;  and  whenever  it  is  a  question  of  power,  it 
should  be  a))proached  with  infinite  caution,  and  affirmed  only 
upon  the  most  persuasive  reasons.  In  examining  the  Constitu- 
tion, the  antecedent  situation  of  the  country  and  its  institutions, 
the  existence  and  opcrotions  of  the  State  govenunents,  the  powera 
^nd  (q>erations  of  tbe  confederation,  in  sliort,  all  tbe  circuro* 
'  itanocs  which  bad  a  tendency  to  produce  or^  obstruct  its  forma* 
tiou  and  ratification,  deser^-e  a  careful  attention.  Much,  also^ 
may  be  gathered  from  contemporary  history  and  contemporary 
interpretation  to  aid  us  in  junt  conclusions.' 

5  405  a.  It  will  probably  be  found,  when  we  look  to  the  char- 
acter of  the  Constitution  itself,  tbe  objects  which  it  seeks  to  at- 
tain, the  powere  which  it  confers,  the  duties  which  it  enjoins, 

■  The  r*lae  o(  (onUmponij  inlcTjirrtation  ii  mwh  inrnded  ««■  b]r  tb«  SniimM 

CmK,  In  StiMit  *.  lAJRt,  1  Crancb.  299,  >09,  in  Mirttn  v.  nuntrr,  I  Wlini.  R.  804, 

\  mi  In  Oah«w  r.  Viiieliili,  B  WImM.  B.  Ml,  4IS  to  4S1.    Than  *n  tuxml  biMancn, 

I  bo>«nr,  ia  whioh  lh«  tumUmfo-nry  InUfvclitioiu  by  wm«  et  tk*  neat  diaUDgaabed 

I  teanim  of  Uia  Conrtitntion  Iwra  beta  wrctndwl.    One  cf  tb«  mool  itriUnf  U  to  bn 

'  tDnnd  in  Ibe  il»cfaio«  of  tb«  teptcnw  Coart  <J  iha  mublKt; «f  t  SUto  hjr  knr  cilioni  at 

ftUMhtr  aute  (CbbbolM  T.  G*M)(ta,  S  Dall.  419)  ;  knd  ■iiatlMr  (n  IhadwMan  bj  ibfl 

cxwDttTc  ind  tba  Son«t#,  that  tha  convrnt  ot  lh«  UUcr  ii  not  iiniiiMij  lot*moral 

trcn  oAra,  «lltinugli  li  ii  tor  apinlbUiwaU.     Tlir  F»denliit,  So.  77. 

(a)  Vbcn  tttMoadlitollotti]   pdrpom  Anii,  tr  thrj  on  b«  Mjiaraud.     Plod^U 

m  tOBpUtdr  KlBRled  «itb  shat  ak>no  (L   Co.  ■.  Sirhatt*.  IK    IIS ;  Albany   ■>. 

wonU  bt  proper,  lb*  wImI*  oimI  U  to-  flunlvy,  lOS  V.   S.  3il6  ;  Keokuk  Packet 

ittUA.    AUm  «.  LooUeM,  103  tT.  8.  «0.  Co.  v;  Keoknk,  95  V.  8.  89. 


CB.  T.] 


RULES  OP  IXTESPBETATION. 


809 


and  the  righto  which  it  scciirofs  as  well  an  the  known  hiHtArical 
fact  that  many  «f  it«  proviiiiuiis  were  raatu?™  of  comikromisc,  of 
opposing  interests  and  opiniooa,  that  no  uniform  rule  of  inter- 
pretation  can  bo  applied  to  it  which  may  not  allow,  even  if  it 
does  not  positii'ol}'  dcmuDd,  many  moditications  in  its  actual 
application  to  particular  cUumm.  And  perhaps  the  nafeat  rule 
of  intorprctutioQ  after  ail  will  be  found  to  be  to  look  to  the 
nature  and  objectti  of  the  particular  |>ua'cni,  duties,  and  ri^hta, 
witli  all  the  lights  and  aids  of  contemporary  history,  and  to  give 
[•  to  the  words  of  each  ju8t  such  operation  and  force,  conaistent 
with  their  legitimate  meaning,  ats  may  fairly  secure  and  attain 
the  ends  proposed.' 

§  406.  It  is  obvious,  however,  that  contemporary  interprota- 
tiou  must  be  reaorted  to  with  much  ((ualificution  aud  reaerre. 
In  tlie  first  place,  tlic  private  interpretation  of  any  particular 
man  or  body  of  men  muat  manifestly  be  open  to  much  obaeira- 
tiMi.  The  Constitution  was  adopted  by  the  people  of  the  United 
State*,  and  it  wu»  submitted  to  the  whole  upon  a  just  survey  of 
its  provisions  as  they  stood  in  the  text  itaclf.  In  different  States 
ami  in  difTorcnt  conventions,  difTerent  and  very  opposite  objec> 
tiona  arc  known  U>  liuvo  prevailed,  and  might  well  bo  presumed 
to  prevail  Opposite  interprctationa,  and  difTerent  explaiuitiuus 
of  diffvreut  provisiona,  may  well  be  presumed  to  have  been  pre- 
sentud  in  difFcrenl  bodies  to  remove  local  objections,  or  to  win 
local  favor.  And  there  can  be  no  certainty,  either  tJiot  the 
different  folate  conventions  in  ratifying  the  Constitution  gave 
the  same  uniform  inter|)retatioa  to  ila  language,  or  that  even  in 
a  single  State  convention  the  same  reasoning  prevailed  with  a 
majority,  much  less  with  the  whole  of  the  supporters  of  it.  In 
the  interpn'tation  of  a  State  statute,  no  man  ia  insensible  of  the 
extreme  danger  of  resorting  to  the  opinions  of  those  who  framed 
it  or  those  who  passed  it.  Its  terms  may  have  differently  im- 
presaei]  different  minds.  Some  may  huvo  implied  limitationa 
and  objects  which  others  would  ha^'e  rejected.  Some  may  have 
taken  a  cursory  view  of  ita  enactments,  and  others  have  studied 
them  with  ]>rofound  attention.  Some  may  have  been  governed 
by  a  temporary  intereat  or  excitement,  and  hare  acted  upon  that 
exposition  which  most  favored  their  present  viowa.     Others  may 

■  P«r  Mr.  JiMka  Stoty  in  Ptlgg  n.  Tha  DMBiii09nr«*1lli  of  PntMylnnU,  14  IVUnTi 
8.  C  B.  310. 


810 


CONSriTDTIOM  OF  TUB  ONITBD  STATES.  [BOOK  lU. 


1/ 


have  men  larking  bcDeath  its  text  what  commcDdvd  it  to  their 
judgment  against  even  present  intennts..  Sonw  may  have  iutor- 
prct«<i  its  lan;:uttg«  strictly  aud  closely;  otheni,  from  a  different 
habit  of  thinking,  may  have  given  it  a  large  and  liberal  nicauiug. 
It  is  not  to  be  prcaumed  that,  vvim  iu  tho  convention  which 
framed  the  Coniititutiun,  from  the  caiuies  above  uiontiotiud  a»d 
other  cauDcs,  the  clauiie»  n-vro  always  underatood  in  the  aainc 
ocoBe,  or  hud  prcciaely  the  same  extent  of  operation.  Every 
member  nceraaarily  judged  for  hiinnelf ;  and  lh«  judgment  of  no 
one  could  be,  or  ought  to  be^  conclusive  upon  that  of  others.  The 
known  diversity  of  construction  of  different  parts  of  it,  as  well 
as  of  the  mass  of  its  powers  in  the  different  State  conventions, 
Uic  total  silence  upon  many  objections  which  have  since  1)een 
started,  and  tlie  strong  reliance  n)M>n  others  which  have  since 
.bocn  uuiveraally  abandoned,  add  weight  to  these  suggestions. 
Nothing  btit  the  text  itself  was  adopted  by  the  people.  And  it 
would  certainly  be  a  moat  extravagant  doctrine  to  give  to  any 
oomnieutary  then  made,  and  dfortioriy  to  any  commentary  since 
made,  under  a  very  different  posture  of  fcoling  and  opinion,  an 
authority  which  should  operate  aa  an  aii»oIute  limit  U{Mm  the 
text,  or  should  superaede  its  natural  and  just  interpretation. 

§  407.  Contemjiorary  construction  is  properly  resorted  to,  to 
illustrate  and  conlirm  the  text,  to  explain  a  doubtful  phrase,  or 
to  expound  an  obscure  clause ;  and  in  proportion  to  the  uniformity 
and  universality  of  that  construction,  and  the  known  ability  and 
talents  of  those  by  whom  it  waa  given,  is  the  credit  to  which  it 
is  entitled.  It  can  never  abrogate  tJie  text,  it  can  never  fritter 
away  Its  obvious  sense,  it  caa  never  narrow  down  its  true  limi- 
tatioos,  it  can  Duver  enlarge  its  natural  boundariea.'    We  shall 

>  Hi.  JolEtnoaktakiitdowatiMrala^akiobbeiietaifpaifiKtoniOMfbrtbeiiib^r- 
pRtotion  oi  the  Cnuiitntioa.  The  Snt  U.  "Tlw  eapilil  ud  Ifdjng irtJBat  of  the 
OMMtitntioo  «u,  to  k«TO  «lth  ikc  Stuoi  all  «iuLarlilca  wUeli  faapeettd  tliair  own  citk 
MBi  vnly,  ud  u>  taHubr  ta  tb*  tTnllad  StatM  Umm  whidi  mpartod  citiMM  of  fon4g« 
orolhcc  Sutwi  !«■*]«>  utavwml  MtooatMlvM^  Imt  ona  w  to  all  otbtn.  lu  thvlal- 
tar  CM^  tbt*.  OMMtivotioni  ihoaU  l«ui  to  Um  genml  jwudirtiea,  if  tlw  wonU  will 
bewit:«nilin  hnerortbeSlatM  ht  tbehnner,  ifpoMiMe  tolMMMOrtRMd."  iSti' 
let«M'«C«n«fi.S73i  M. SSI. 393 ;  Id. MS.  KowtltevttytlwayoiiwhkfcUiUoMion 
b  toMwUd  i»  wrotwdktcJ  hj  tlw  pwrtilni  of  th«  Oa^ltutJoB  tt»lf.  U  iii>b;  tiuUncM 
MitboritUi  u>d  p»«m  va  f^-nm  nklch  mpact  dtliMU  of  th«  n<|NCtlTO  StM,U»  wtihout 
nfOMim  to  r<9nlt[Qm  or  the  dlliaiit  ot  <dliur  Stat**.  1  JvRenon'i  Can«ifL  S91,  tti, 
SM.  Bittf  tlifa  g^anl  tiMory  w*t«  txw^  itwtuiU  bmauiiiiojnAml*  of  iiUitTcata- 
Uui,  rfuM  a  partioaW  oltuaa  misht  fonn  an  exocptioii  to  it  j  »oA,  indeed,  ntry  elauM 


OH-  v.] 


RCLKS  OP   QiTBBFBCtAnON. 


811 


luve  abundant  rcMou  hereafter  toolMer<re,  wlK>n  wo  enter  upon  the 

aualvflU  of  tlie  particular  clniuea  of  the  Cuiutitutiun,  how  many 

Yy  loose  iuterpretatioiia  and  plaiuible  conjvcturvs  vero  haeardcd 

at  an  early  period,  which  have  siuce  silently  died  awuy,  aad  aro 

nu^t  at  atl  ereuU  to  bo  ranitniod  xcoidln^  la  It*  fair  inknl  and  olqcda,  as  diaekaeil 
in  iu  langiuga,  Wliat  tort  «r  *  rak  U  Uia%  vhioh,  wUfcont  rapwl  to  tho  imtcat  «r 
abjcvUarik|arUcab«olaua<i,ia«iMathat  it  ■ball.if  pMvtf^fiwt  if  rauoMiif'),  W  eon- 
lUwil  iu  Utia  lit  tlM  StatM^  nrnjij  bacauM  It  mpccU  llicir  dtinai  I  He  tOMOil 
'  WBOu  b,  "On  avny  cjuution  ot  oonatrnctloD  [«« thonld]  eutj  ODfMlTM  Iwtk  to  Ibo 
\  tins  wb«u  the  Constitatinn  wiu  uloptod ;  >«ooH«ot  llie  ^ri  t  muiifcalvd  tn  the  <kbat«a ; 
-  nul  iiuUul  af  trylitK  wluit  meuing  naj  U  sqnwicd  out  ef  the  trit,  or  Invtatnl 
m»iaiit  it,  cinrunti  In  tlis  jiroWbU  oow  is  sliUli  it  iru  jiukiI."  Horn,  sho  iloo  not 
irr  III'  utET  Itwxviiiru  and  iiicaticnnico  of  tliui  canon  t  Haw  an  wa  to  know  what  wm 
tliou^tof  partifukr  cljin»iof  UieCanstlnBlioDat  th«  tinworiUailoptloDr  Ib  many 
,  no  printed  date***  fin  taj  acoonkt  pt  any  ronatratttoa  ;  and  where  aaj  in  givni 
I  dlOuwit  pafsoM  hald  diOareut  doctrinea.  ITh'M  la  to  pmnil  I  liaiJc^  of  all  of  tho 
f  8UI>  ooDvantJonii,  tho  Urbulai  of  five  onljr  otn  pRwrTod,  and  theu  very  imperfectly. 
Vhat  b  to  U  dono  m  to  the  otbor  ri^ht  3taUa  T  What  b  to  h«  doo*  an  to  th*  dovra 
new  Statta,  which  hare  com«  into  thvlTnlon  andtrcoDatriMtiaiu  which  ha*a  been  aatab- 
<  Ifahod  aipdwt  what  wow  [isnonii  may  doeok  tlio  iwning  of  the  ftaoMn  of  H I  How 
I  aro  wo  to  nirive  at  what  is  tho  ntoat  ptobaUe  MMning  T  An  Mr.  Hamiltam  and  Ur. 
fUadiion  Btid  Sir.  Jar,  thn  eipoundeti  in  the  FnUralbt,  to  he  (allowod  T  Or  ara  others 
'  «l  a  dilK-reiit  opEniuu  to  (^Jilt  ua  I  Ato  wo  to  b«  KOTamed  hj  the  opiniuun  ut  a  fuw, 
now  droll,  who  hare  left  them  on  ncoiil  T  Or  by  tbam  of  a  finr  now  living,  riinply 
bccaniB  tboy  war*  acCoa  to  thlai  days  (ootutitetitig  net  eno  in  a  tiMOiuiiid  of  thoao 
who  woro  called  lodollbeioto  npa  (ho  OmilituUon,  and  sot  o«w  in  tan  thouiandof 
Uiooi  who  were  In  favor  of  or  againal  it,  anioug  the  pouple)  t  Or  are  we  to  be  govomod 
by  (he  opinion  of  thoH  who  oonititutfd  n  mnjority  of  tbinc  who  were  caltnl  to  art  on 
thai  oecaidon.  flllMt  M  framanof  or  votenopan  theCanetilDtioDr  If  by  the  Utter,  la 
wkot  taaflMr  oan  we  linow  thowt  ofdateus  >  Are  w*  to  be  soreniod  hy  the  aenao  of  a 
ni^jonty  of  a  patti«uUr  State,  or  of  all  the  United  StatM  T  It  acs  bow  ar«  w«  to  awar- 
tain  what  that  tenm  wa>  t  U  the  ttaar  of  Che  Coiiitilotkai  to  be  aaorrtaintd,  not  by  Ita 
own  text,  b»t  hy  tb«  "proitM*  w«ini{ajr  ~  to  be  ^tlmcd  hy  eo^jeetvtw  from  acattncd 
iMmmmUt,  ttom  private  ^pna,  IVow  tha  tab1*-Ulk  of  aome  thIaiMaB,  or  the  jemiaa* 
W^gentjons  of  othm  T  li  the  CoatfHnlion  of  the  CTnlUd  Stataa  to  be  tho  only  itutn- 
aiant  wMch  b  not  to  be  iatarpntad  by  what  b  wiitton,  but  by  jkoImU*  inoaM*,  aalda 
.'from  the  l«ii  •  What  wonld  bo  atU  of  intarpnting  a  atstato  of  a  State  UgirfslMa  bj 
[andtaTotinmo  find  out.  from  priratnsourea^  tho  oljt»ob  and  ofiniona  of  ■retyfbw, 
e««t7  one  Ihoughl,  what  be  wiahtd,  liow  ho  IntMpnted  b  t  8n|ipoM  dUetcnt 
I  had  diOenail  opiaioM,  what  b  tobodonoJ  Siip|i«aa  dHfawt  pwiaM  aw  not 
iMto  "theioobablonauuDg'  of  the  &u>i>n  or  of  iha  paopla.  what  iatefpiola- 
'tfaa  b  10  bo  MIownl  t  The**,  and  many  qiMattoiu  of  As  mm  sort,  wight  b*  aakod. 
It  b  olwion*  that  thi««  can  bo  m  oecaii^  to  thi  peopb  in  any  oonatiWtioM  of  govern- 
Y  DKBta  it  iliey  aie  not  tojiul^of  it  by  IIm  EataHoanlnf  of  the  wotdsof  tho  text ;  hat 
''  the  woidi  arc  to  be  bent  and  bmken  Iqr  tho  "  foohabb  moaning"  of  potaoiuwfcomtlier 
never  knew,  and  whose  opiniooa  and  neans  of  IntNination  may  be  oo  bttter  than  their 
own  '  Tho  propb  adofilod  tho  CoBstilMbn  aeeordlng  to  tlte  wonb  of  the  text  in  tliau 
L  tauoMoUe  InUrf-retalion,  end  n«taoeardlii|i  to  tiki  peivate  intarpntatknn  of  any  (sttiMK 
ikr  Mca.    The  opiaioni  of  tha  bitcr  OMy  amuliMM  aid  as  in  aninaj  at  Jnu  nsulb ; 


S12 


COXSTITUnON   OP  THE  UNITED  BTATEfl.  [iMOK  IH. 


now  retfliued  in  no  living  memorj',  aft  a  topic  eitlier  of  praise  or 
blame,  of  alarm  or  of  congratulation. 

§  408.  And,  after  all,  the  most  imesceptionnblo  source  of 
collateral  interpretation  is  from  the  practical  exposition  of  the 
goi'ernment  itself  in  its  ^'arious  departments  upon  particular 
<]iiefltions  diiicuaiwd,  and  twttled  upon  their  own  single  merits. 
These  approach  the  nearest  in  their  own  nature  to  judicial  expo- 
sitionft,  and  have  the  same  general  recommendation  that  bcloDga 
to  the  latter.  They  are  decided  upon  solemn  argument,  pro  rt 
nata  upon  a  doubt  raised,  U])on  a  U»  tnota,  upon  a  deep  sense  of 
tlicir  importance  and  difficultr,  in  tlie  face  of  the  nation,  with  a 
view  to  present  action,  in  the  midst  of  jealous  interests,  and  b; 
men  capable  of  urging  or  re]>clling  the  grounds  of  argument, 
from  their  exquisite  genius,  their  comprehensive  learning  or 
their  deep  meditation  upon  the  absorbing  topic  Hon-  light, 
compared  with  these  means  of  instruction^  arc  the  private  lucu- 
brations of  the  closet,  or  the  retired  spcculatiuna  of  ingenious 
minds,  intent  on  theory  or  general  licwit,  autt  unused  to  en- 
counter a  practitral  difliculty  at  every  step !  {a) 

§  409.  III.  But  to  return  to  the  rulco  of  interpretation  arising 
txdireeto  from  the  text  of  the  Constitution.  And  first  the  rules  to 
Iw  drawn  from  the  nature  of  tho  inHtrumcnt.  1,  It  is  to  be  con- 
strued as  n  frame  or  fundamental  law  of  govt-rnment  eatablishi'd 
by  tho  PEOPLE  of  the  L'nited  States  according  to  their  own  free 
plrasurc  and  sovereign  will.  In  this  respect  it  la  in  no  wise 
distinifutshablc  from  the  const  itutioos  of  tho  State  governments. 
Each  of  them  is  established  by  the  people  for  their  own  purjMjiscs, 
and  each  is  founded  on  their  supreme  authority.     The  powers 


bat  tiMjr  aa  nevti  \»  cwMlnitnt.  Thii  Fttknlitt  dvnM  ihit  111*  PmUeni  coald  r*- 
more  a  pubtio  officer  without  the  aonwnt  of  Uw  Stukfab  The  Snt  Congnw  tOLnned 
Ui  right  by  ■  men  majority.    Whiob  b  to  be  fotlewed  > 


(a)  That  t.  iinwticd  MqwUtkm  ol  tb« 
OuMtllullon  \onif  wqaicKoi  is  niU  not 
be  departol  froia,  tet  Slewut  v.  Lurd,  t 
Cruidi.  S99 1  HiCulloch  k  ll>iTl«ii<t  4 
WhML  ns :  RriMM>  V.  Bank  rf  Kannioky, 
11  P«l.  tJ7;  W«t  KJTcr  BHV  Co  r. 
DU,  S  How.  Su7 :  Buik  «r  Unitol  Sutet 
n  Hiiblnkl.  10  WhML  eSi  OgdM  V. 
SMUiilcn.  13  WhML  SM ;  Cnloa  Int.  Co. 
n  II«)tc  31  How.  Mi  lJitil«d  SiatM  ■. 


aaanre,  S  WiIL  S30  ■  Hu^mp.  Hnslir*. 
«  T.  a  Mom.  43  :  fingcB  r.  Pa^  S  Gill, 
ll;Coalutr.  pM[ll^lIW(od.  B11  ;!Jor. 
ri*v.  Clynwr,  S  Pmn.  8l  ST7)  Pike  '.  llo- 
gowi.  44  Ho.  4>9i  Britlon  r  Vnry,  14 
Mich.  86 ;  Sute  K  FuliinnMi,  S  Ker.  19  g 
Ht-igBttiu  >.  D■vl^  6t  N.  a  «t ;  Flxro- 
Birr  V.  PlnnHiKT,  97  Mb*.  lU ;  Chantbm 
V.  Fitk,  »  Ttxu,  Mi 


CH.  T.] 


BDLE9  OP  INTCItPRETATION. 


813 


vhicli  nrti  conferred,  tlio  restrictions  which  aro  Imposed,  tho  an- 
thoritii.-it  nhich  arc  cxcrcitto.!,  tho  orjranizatiuii  am)  distrilnitioa 
thereof  whidi  uro  provided,  ore  in  each  ca8e  for  tho  snine  object, 
the  common  beticfit  of  the  goTerncd,  and  not  for  the  proRt  or 
dignity  of  tlie  nilcrs. 

§  410.  And  yet  it  hns  been  a  very  common  mode  of  interpre- 
tation to  insist  upon  a  diversity  of  lulcs  in  cmntniinir  the  Slate 
constitutiona  and  that  of  the  gi'neral  govcmmeiit.  Tl\us,  in  the 
Commentaries  of  Mr.  Tucker  upon  It1acknton«,  we  find  it  laid 
down,  n«  if  it  wore  an  incontrovertible  doctrine  in  rP8»i"d  to  the 
Constitution  of  the  United  Statea,  that  "as  fedoral,  it  ia  to  be 
conntrued  ttrictly,  in  alt  cases,  where  the  antecedent  rigtita  of  a 
State  may  bo  drawn  in  qucstioa  "  As  a  social  compact,  it  ought 
likewioo  "  to  receive  tho  same  strict  cooBtruction,  wherever  tho 
right  of  personal  liberty  or  of  personal  security  or  of  private 
pro]»erty  may  become  the  object  of  disjiutc;  beeaiuu;  every  per- 
son, whose  liberty  or  property  wag  thereby  rendered  subject  to 
the  new  ^vernment,  w<u  antectdfHtfg  a  memher  of  a  cii'it  toeiety, 
to  whote  rtgulationt  he  had  tuimitUd  hinue^f,  and  under  whote 
authority  and  proUctton  he  Hilt  remaau,  in  aU  ea9ea  not  erprettlg 
tuhmitted  to  the  nev  ffoeernment." ' 

§  411.  Wc  hem  see  that  the  whole  reaiioning  is  founded,  not 
on  the  notion  that  the  rights  of  the  people  are  concerned,  but  the 
rights  uf  the  Statei.  And  by  atriet  construction  is  obviowtly 
'mcttnt  the  most  limited  sense  belonging  to  tho  words.  And  the 
learned  author  rcli«»,  for  the  8t)p}K>rt  of  bis  rcasuning,  upon  itomc 
rules  laid  down  by  Vatt«l  i»  relation  to  the  inlerjiretjition  of 
tics  in  relation  to  odiou*  things.  It  would  seem,  then,  that 
the  Constitution  of  the  Unit<?d  Stales  is  to  be  deemed  an  odious 
instrument  Ami  why,  it  may  bo  asked  ?  Waa  it  not  framed  for 
tlie  good  of  the  people,  and  by  the  people  t  One  of  the  sec- 
tions of  Vattel,  which  is  relied  on,  states  this  proposition,'  "That 
whatever  XkoAr  to  change  the  present  state  of  things  is  also  to  lie 
ranked  in  tlie  class  of  odious  things."  Is  it  not  most  manifest 
kthat  this  pro|¥)Bition  is,  or  at  least  may  be,  in  many  cases,  fiin- 
'damentally  wrong  ?  If  a  jwople  free  themselves  from  a  despotism, 
is  it  to  be  said  that  tho  change  of  government  is  odious,  and  ought 
to  be  construed  strictly  ?     ^Vhat,  upon  such  a  principle,  is  to 


>  1  Tgckw'*  Bkck.  (>»».  App.  ISl. 


•  B.  S.  j  »05. 


814 


CONSnTUTIOK  OF  THE  USITED  STATtS.  [BOOK  HI. 


become  of  Uie  American  Kuvulutiuct,  utnl  of  our  State  goTenunents 
and  State  coitst)lutiou«  ?  i^uppoito  a  well-unlcrud  gtivenuoent 
arises  out  of  a  Hlate  of  disorder  tiiid  uueu'vby,  is  Kuc'b  a  ^vfroineut 
to  be  con»iderod  odious  ?  Auutbvr  scctiuu '  uddti :  "  Sincu  odious 
things  nre  tboae  whose  restriction  teuds  wore  cortaiiily  to  equity 
than  tlieir  extension,  and  since  ve  ouglit  to  fHimie  that  liiiti 
wliich  is  most  conformable  to  equity,  when  the  will  of  the  It^s- 
latun;  or  of  tlie  contracting  jiarties  ift  not  exactly  known,  we 
should,  wh^re  there  is  a  question  of  odious  things,  interpret  the 
terms  in  the  most  limited  s«nse.  We  may  even,  to  a  certain 
degree,  adopt  a  figurative  meaning  iu  order  to  arort  the  uppres- 
sive  cousL-quenccs  of  the  proper  and  literal  senses  or  anything  of 
an  odious  nature  which  it  would  involve."  Does  nut  this  soctitm 
contain  most  lax  and  unsatisfactory  inf^dicuts  for  interpreta- 
tion ?  Wl»  is  to  decide  whether  it  is  most  eonfurmable  to  equity 
to  extend  or  to  restrict  the  sense  T  Who  ia  to  decide  whutber  the 
provision  ia  odious  ?  According  to  this  rule,  tlie  mo«tt  opposite 
interpretations  uf  the  same  words  would  bo  equally  correct,  sc- 
.  cording  an  the  interpreter  should  deem  it  odious  or  salutary. 
Nay,  tiio  words  are  lo  be  desertt-d  and  a  figurative  si-nsc  adopted, 
whenever  bo  deems  it  advisable,  looking  to  the  <*dious  nature  or 
consequence  uf  the  common  sensut.  lie  who  b<.-liev(.-t(  the  general 
government  fuundt-d  iu  wisdom  and  sound  policy  and  tbc  public 
safety  may  extend  tlio  words.  He  who  dvems  it  odious,  or  the 
State  govonimeiils  tbo  truest  protection  of  all  our  riglits,  must 
limit  tlie  words  to  tbo  narrowest  meaning. 

§  412.  The  twelfth  amendment  to  the  Constitution  is  also  re- 
lied on  by  the  same  author,  which  declares  "that  the  powers  not 
delegated  to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  States,  are  reserved  to  the  Stai«>  respectively, 
or  to  Hie  jKople." (a)  He  evidently  supposes  that  this  means  "in 
•11  cases  not  exprenlif  »abinilted  to  the  new  guvernment;**  yet 
the  word  **  expressly  "  is  nowhere  found  in  the  amendment  But 
wo  are  not  considering  whether  any  powers  c«n  be  implied;  the 
only  point  now  before  us  is,  how  the  express  powers  are  to  be 
oonstrued.     Are  they  to  be  construed  strictly,  that  is,  in  their 

1  IS06. 

(a)  8«*  OoldM  V.  Pnnn,  S  Wasb.  C.C.  S13 ;  CiliM  a.  Bull,  S  DalL  8M  i  Oflinao 


CB.  v.] 


UULS&  OP   INTERTRBTATIOK. 


815 


most  ltmit4»l  Hciuc  T  Or  uro  Uioy  to  receive  a  fair  and  rcasom- 
Ijlc  c uusl ruction,  iic<!on)iitg  to  tliu  plum  miiiuiiug  of  Uic  tcnuit  and 
Uic  oljjucU  fur  which  ihcy  ure  uKod  ! 

§  ll-'i.  ^Vhen  it  ift  Mid  tliat  tLc  ConxtitutioQ  of  the  United 
StAt«8  should  b«  construed  strictly,  vit-wt-d  aa  a  social  compiiut, 
wbe»«v«r  it  toticbea  the  rights  of  property,  or  of  personal  Reciirity 
or  lihertT,  the  rule  is  equally  applicable  to  the  State  coustitu- 
tionfl  in  the  like  cases.  The  principle  upon  which  this  iiilerprc- 
tation  rcata,  if  it  has  any  foundation,  must  be  that  the  people 
ht  not  to  he  presumed  to  yield  up  their  rights  of  property  or 
liberty  beyond  what  is  the  clear  sense  of  the  language  and  the 
objccta  of  the  Constitution.  All  govenuneots  are  founded  on  a 
Borrender  of  Bome  natural  righlit,  and  impose  some  restrictions. 
We  may  not  be  ut  liberty  to  extend  the  granla  of  power  beyond 
tlie  fair  meaning  of  the  words  in  any  such  caac;  but  that  is  not 
tlie  (juration  here  under  disciiaaion.  It  is,  how  we  are  to  con- 
Btruc  the  words  aa  used,  whether  in  the  most  confined  or  in  the 
more  liberal  sense  proporly  bclcmi^iog  to  tbem.  Now,  in  con- 
etmiDK  a  prunt  or  surrender  of  powers  by  the  peo]>le  to  a  mon- 
arch, for  his  own  bvnofit  or  use,  it  is  not  only  natural  but  just  to 
presume,  aa  in  alt  other  cases  of  grants,  that  the  parties  had  not 
in  view  any  large  sense  of  the  tttrms,  because  the  objwta  were  a 
derogatitm  permanently  from  their  rip^ts  and  interests.  But  in 
construing  a  constitution  of  government,  framed  by  the  people^for 
their  own  benelit  and  protection,  for  the  preservation  of  their 
ri^ts  and  property  and  liberty,  where  the  delegated  powers  are 
'not  and  cannot  be  used  for  the  bent-fit  of  their  rulcni,  who  arc  but 
tbeir  temporary  servants  and  aguuts,  but  are  intended  solely  for 
the  benefit  of  the  people,  no  such  presumption  of  an  intention  to 
use  the  words  in  the  must  rvstrietod  sense  neccssarilj  arises. 
Tlie  strict,  or  the  most  extended  sense,  both  being  within  tbe 
letter,  may  be  fairly  held  to  be  within  tJieir  inlpntion,  as  either 
sliall  Iwst  promote  the  very  objects  of  Iho  people  in  the  grant; 
as  either  shall  best  promote  or  Heeure  their  rights,  property,  or 
■  liberty.  The  words  aro  not,  indoeti,  to  be  stretched  beyond  their 
'&ir  senao;  but  within  that  ranj^  the  rule  of  interpretation  must 
be  taken  which  best  follows  out  the  apparent  intention.'  This  is 
the  mode,  it  is  believed,  universally  adopted  in  construiug  the 
State  coostitutiuns.     It  has  its  origin  in  conunou-scusc.     Aud 

1  BawUoiitUC«wtiUtia«,«fc.  I,  p.  U. 


810 


rOSSTITtlTIOM  OF  THE  DNtTCD  STATES.  [BOOK  III. 


it  never  can  be  a  matter  of  juHt  jealougj-;  because  the  ruloi  can 
have  no  permanent  interest  in  a  free  goTernment,  distinct  from 
that  of  the  people,  of  whom  they  are  a  part,  and  to  whom  they  are 
reaponnible.  Why  the  same  reasoning  should  nut  ap]>)y  to  the  gor- 
emmont  of  the  United  Statea  it  is  not  very  eaiiy  to  conjecture. 

§  414.  But  it  18  said  that  the  State  {^vommcnta  bein;;  already 
in  existence  and  the  people  subjected  lo  them,  (heir  obedience  to 
the  now  guvernmeut  may  endanger  their  obodicnoe  to  tJte  Slat£», 
or  involve  them  in  n  conflict  of  authority,  and  thus  produce  in- 
convenience. In  the  firat  place,  tt  \»  not  true,  iu  a  just  sense 
{if  we  are  right  in  onr  view  of  the  CoRiititution  of  the  United 
Stntot),  that  such  a  conflict  can  ultimately  exist.  For  if  the 
powers  of  the  general  government  are  of  paramount  and  supreme 
obligation,  if  they  constitute  the  supremo  law  of  the  land,  no 
conflict  as  to  obedience  can  be  found.  Whenever  the  queatioD 
arises  to  whom  obedience  is  due.,  it  is  to  lie  judicially  settled; 
and  being  aettled,  it  regulates  at  once  the  rights  aud  duties  of  all 
the  citiiena. 

§  415.  In  the  nest  place,  the  powers  given  by  the  people  to  the 
general  gov^Tnment  are  not  necessarily  cai-vwi  out  of  the  powers 
already  contided  by  them  to  the  State  governments.  They  may 
be  such  as  they  orisrinally  reserved  to  themselves.  And,  If  they 
ore  not,  the  authority  of  the  people  in  their  sovereign  capacity 
to  withdraw  power  from  their  State  functionaries,  and  to  confide 
it  to  the  fuuctiunarli«  of  the  penoral  gox-emment,  cannot  be 
doubted  Or  dunied.*  If  they  withdraw  the  power  from  tlie  ^tate 
functionaries,  it  must  be  presumed  to  be  because  they  deem  it 
moro  useful  for  ihemgelves,  more  fur  the  common  benefit  and 
common  protection,  than  to  leave  it  where  it  has  been  hitherto 
deposited.  Why  shottid  a  power  in  the  hands  of  one  functionary 
i»e  dilTer^'Utly  construed  in  tlie  hands  of  another  functionary,  if 
in  each  case  the  same  object  is  in  view,  the  safety  of  the  poople  f 
The  State  governments  have  no  right  to  assume  that  the  powier 
is  more  snfu  or  more  useful  with  them  than  with  the  general  gov- 
ernment; that  they  have  a  higher  capacity  and  a  more  honest 
desire  to  preserve  tlic  rights  and  liberties  of  tlie  people  than  the 
general  govcrnmont;  that  there  is  no  danger  intrusting  tliem, 
but  that  nil  the  poril  and  all  the  oppression  impend  on  the  other 
side.     Tlie  people  have  not  ao  said  or  thought;  and  they  have 

1  H4rtlii  ».  Hantcr,  1  Wbnt  K.  M4,  8U. 


CH.  T.] 


nCLra  OF  INTERPRETATIOJJ. 


819 


"Tho  p)T«minent,  tli«n,  of  the  United  Stntes  can  claim  no 
]iower»  wliici)  are  not  granted  to  it  )>}'  th«  Constitiitioa;  and  the 
powera  nctimlly  gmiited  mnat  l»e  suoli  as  are  exproosly  given,  or 
pvea  by  necessary  implieation.  On  tho  other  hand,  this  in- 
strument, like  pi-ery  other  jn'ant,,  is  to  have  B  reosonahle  con- 
struction according  to  the  tm])ort  of  ita  tfrmii.  And  whore  a 
power  ia  exprcaHly  given  in  general  terms,  it  is  not  to  ho  re- 
strained to  particular  cases,  unlcHS  thut  construction  grow  out  of 
the  context  exprctsly,  or  by  necessary  impHcation.  Tho  words 
are  to  be  taken  in  their  natural  and  obrioua  sense,  and  not  in  a 
sense  unreasonably  restricted  or  enlarged." 

$418.  A  still  more  striking;  response  to  the  argiintcnt  forn 
strict  construction  of  the  Constitution  will  bo  found  in  the  lan- 
guage of  the  court  in  the  case  of  Gibbuus  v.  Ogden,  9  Wheat.  1, 
4c.  Mr.  Chief  Justice  Murshall,  In  delivering  the  opinion  of 
the  court,  says:  ''This  instrument  contains  an  enumeration  of 
powers  exprciwly  gruntud  by  the  people  to  their  guvummpnt.  It 
has  been  said  that  these  powers  ought  to  he  construed  strictly. 
But  why  oujHit  they  to  he  so  const  ni«<l  ?  Is  there  one  SL-iitenec  in 
the  Constitution  which  gi%*cs  cotiiiteimncc  to  tliis  rule  f  In  the 
lost  of  tJic  enumerated  powers,  that  which  grants  expressly  the 
means  for  carrying  all  others  into  execution.  Congress  ia  au- 
thorized '  to  make  all  laws  which  shall  be  necessary  and  proper ' 
for  the  purpUFiC.  But  this  limitation  on  the  means  which  maj 
be  used  is  not  extended  to  the  powers  whidi  arc  conferred;  nor 
is  there  one  sentence  in  the  Constitution  which  hua  been  pointed 
out  by  the  gentlemen  of  tlie  bar,  or  which  we  liave  bi-en  able  to 
disocrn,  that  prescribes  this  rule.  We  do  not,  therefore,  think 
ourselves  justified  in  adopting  it.  What  do  gentlemen  mean  by 
a  strict  construction  ?  If  they  contend  only  against  that  enlarged 
eonstrnction  which  would  extend  words  beyond  their  natural  and 
obvious  ioiport,  wo  might  question  the  application  of  the  terius, 
but  should  not  controvert  the  principle.  If  they  contend  fur  thut 
narrow  construction  which,  in  support  of  some  theory  not  to  be 
jtoond  in  the  Constitution,  would  deny  to  the  govemiueiit  th<Mo 
povera  which  the  words  of  the  grant,  as  usually  underttlood,  im- 
port, and  which  are  consistent  with  the  general  views  and  objectB 
of  the  iufltrument,  — for  that  narrow  construction  which  would 
cripjtle  tiie  government  and  ren<ier  it  unequal  to  tho  objects  for 
which  it  is  declared  to  be  instituted,  and  to  which  tlie  powers 


B18 


CONSTITUTION  OP  THE  PNITED  STATE3.  [BOOK  Itt. 


§  417,  The  language  of  the  i^upreme  Court  in  the  CMC  of 
Mnrtia  r.  ilunter'  sucms  peculiarly  appropriate  to  this  part  of 
our  subject  "The  Conatitution  of  the  United  Status,"  say  the 
court,  **vaa  ortlainod  und  csliiblishcd,  not  by  tLo  Stalet  in  their 
Bovcreifni  capacities,  but  emphntically,  ii8  the  preamble  of  the 
Cotuititutiundcclureit,  by  the  people  of  the  L'nited  .States,*  There 
can  bo  nu  doubt  that  it  was  com{)etent  to  the  pci>))Ie  to  invest  the 
general  goreniment  with  alt  the  powent  which  tJiey  niij^ht  deem 
proper  and  necessary,  to  eslcn<i  or  reatrain  those  powers  accord- 
ing to  their  ouii  (rood  pleasure,  and  to  giva  tht-m  a  paramount 
and  iiu|ircme  authority.  As  little  doubt  can  there  be  lltat  the 
people  had  a  right  to  prohibit  to  the  States  tlie  exercise  «»f  any 
I<ower8  which  were  in  their  jud^ent  incompatible  wilh  the  ob- 
jects of  the  general  compact,  to  make  tlie  powei-s  of  the  State 
governments,  in  given  caaee,  Hulmrdinate  to  those  of  the  nation, 
or  to  re«er^'e  to  tliemsei^es  those  sovereign  authorities  which  thoy 
miftlit  not  choose  to  delegate  to  either.  The  Constitution  was 
ni>t,  therefore,  neepssarily  carved  out  of  existing  .State  sover- 
eiintties,  nor  a  surrender  of  powers  already  existing  in  State 
institutions.  For  the  powers  of  the  State  goremments  depend 
Tipon  their  own  constitutions;  and  the  people  of  every  State  had 
a  right  to  modify  or  restrain  them  according  to  tlieir  own  views 
of  policy  or  principle.  On  the  other  hand,  it  is  perfectly  cloar 
that  the  sovereign  powers  vested  in  the  State  govemmenta  by 
their  respective  ccHistitutifms  remained  imaltered  and  unimpaired, 
except  BO  far  as  they  were  prantcd  to  the  government  of  the 
United  StatOB."  These  deductions  do  not  peat  upon  general  rea- 
son, plain  and  obvious  as  they  seem  to  be.  They  have  been  poa- 
itivoly  recognized  by  one  of  tlio  articles  in  amendment  of  the 
Constitntion,  which  declares  that  "the  powers  not  delegated  to 
the  tlnitcd  States  by  the  Constitution,  nor  prohibited  by  it  to 
the  States,  are  reserved  t«  tho  State*  respectively,  or  to  the 

)  1  VfhtM.  K.  301. 

*  Tliis  ii  >till  more  forcibly  lUted  bj  itt.  Cliitf  JuitJoe  Utrdiall  In  ddireiing  Ilia 
opiniott  at  tho  court  in  UcCuUwIi  v.  lluryliini!,  in  n  jiuivnitc  iilnailf  cil«d,  i  ViMBt. 
B.  316,  402  lo  406. 

•  IjiNi  tlaa  McCdllodi  v.  Mnryliind,  i  Whtat.  JL  318,  403  to  400. 


I 


I 


I 

I 


{a)  Spoon«r  n  HcCooacll,  I  M«Lmd,  337 1  Rbwle  IfUnd  •.  ItuaMhoMll^  12 

p.i.r». 


CH.  T.] 


RCLBa  OP  INTntPfiETATION. 


817 


the  cxcluai\'0  right  to  judge  for  themHelven  on  the  subject.  Tlicj' 
avow  that  the  Constitution  of  the  United  Slates  was  adopted 
by  thtrm  "in  order  to  form  a  more  perfect  Union,  establish  jus- 
tice, insure  domestic  trnntjuillity,  provide  for  the  commoD  dt>* 
fvuce,  prumo(«  the  general  welfare,  and  secure  the  blessings  of 
liberty  to  tlicitirtelvM  and  their  pOMtority."  It  would  be  a  mocJc- 
i-ry  to  auk  if  tiie«e  are  odious  ubjects.  If  these  require  every 
gTKnt  of  power  withdrawn  from  the  Slate  Kovcmmeula  to  be 
deemed  ttrietimmi  ynrit,  and  cou>itruod  in  the  meet  limited 
sense,  even  if  it  should  defeat  these  objccta,  what  peculiar  sanc- 
tity have  the  State  govenuneotA  in  the  eyea  of  the  people  beyond 
these  objects  ?  Are  they  not  framed  for  the  same  general  ends  i 
Was  not  the  rery  inability  of  the  State  governmenta  suitably  to 
provide  for  our  national  wants  and  national  independence  oud 
national  protection  the  very  groundwork  of  the  whole  system  T 

§  416.  If  this  be  the  true  view  of  the  subject,  the  Constitution 
of  the  United  Stales  is  to  receive  as  favorable  a  construction  as 
those  of  the  States.  Neither  is  to  be  Donatrued  alone,  but  each 
with  a  reference  to  the  other.  Each  belonga  to  the  same  system 
of  government,  ead]  is  limited  in  its  powers,  and  within  the  scope 
of  its  powers  each  is  supreme,  f^ch,  by  the  theory  of  our  gov- 
emmonl.  is  easeutinl  to  the  existence  and  due  preservation  of  the 
power  and  obligations  of  the  other.  The  destruction  of  either 
would  lie  equally  calamitous,  since  it  would  involve  the  ruin  of 
that  Wautiful  fabric  of  balanced  government  which  has  been  reared 
Willi  so  much  care  and  wisdom,  and  in  which  the  people  have 
reposed  their  confidence  as  the  truest  safeguard  of  their  civil,  re- 
liginiia,  and  political  liberties.  Tlie  exact  limits  of  the  powers 
confi<led  by  the  people  to  each  may  not  always  be  copable,  from 
be  inherent  difficulty  of  the  subject,  of  being  defined  or  ascer- 
tained in  all  cases  with  perfect  a-rtainty.'  But  tlie  lines  are 
generally  marked  out  with  suHiciont  broadness  and  clearness; 
and  in  the  pn^^ss  of  the  development  of  the  peculiar  functions 
of  each,  the  part  of  true  wisdom  would  seem  to  be,  to'  leave  in 
every  practicable  direction  a  wide,  if  not  an  unmeaanred,  distance 
between  the  acluul  exercise  of  tJie  sovereignty  of  each.  In  every 
complicated  machine  slight  causes  may  disturb  the  operations; 
and  il  is  often  more  easy  to  detect  the  defects  than  to  apply  a 
safe  and  adequate  remedy. 

1  Tlie  FtdMsUit,  So.  87. 


»w 


antrmmvi*  or  tkb  vrmo  wikm-.        [mkx  ib. 


I  i\1,  'I1*<i  Ihuynin^n  lA  lb*  flD|fKaie  Coart  \a  the  cue  o( 
Mitrilri  V,  lldNlAr'  MWiiM  iMiulinrlj'  B|>prupHat«  to  this  put  of 
init  Niit>)'i't.  "Tlii>  r<»iitttrt|ti<>n  of  thv  I'nitod  fltatcK,"  ny  the 
mni\,  "  WHM  iiriliiliKxl  ntxl  i-«ilii)ili»Ii«d,  u<*t  Xtj  the  AaUt  ia  their 
■nvHHilifii  ii«|iiirtlll<M,  but  imiptuitkaUjr,  u  the  praonbte  of  the 
ffiilialllitlliiii  iti'ii|ui'i-H,  li}'  tli<*  |riMi|il<^(if  ih*"  L'nitwi  Stales.*  There 
UHli  lit)  nil  ilniilil  tliuL  i\  WH  <:4>in|iuU'i)t  t4i  (lii>  people  to  inveHt  the 
IhMii'iiil  Kitviiriitnnnl  wllli  nil  thn  powoni  which  tiiey  might  deem 

ItHUHir  mill  iit'oiimiirjr,  )ii  >'«(<'iiil  "r  n«train  thcwo  powers  ac«ord- 
tiH  III  lliiilr  oivii  k<mhI  plMmirn,  Kiid  to  ipvn  Uiura  a  panimuunt 
Hltd  miinviiin  niilttorlly.  A«  llltin  doubt  cjm  thoro  bo  that  the 
tiiM))dii  h>til  It  i\v,hi  lo  pMkliildt  to  thr  Stutca  tb<>  t'sorciiw  of  «nj 

IMiVit'iH  wliUih  Wt'Ki  lit  llii'ir  jiul|ii<ii*i>t  iiiriun{K)tihU<  with  the  ob- 
wtn  ii(  lh»  )ti<mtrwl  t<oiti)iMi-t,  lo  luitkp  the  |H>w('rs  of  Ute  State 
||\ivtH'(tiHt^(1««  lit  tit^'*^  ottw^  aubonliuxtn  to  ihoM  of  the  oatioai. 
IW  to  itW'VVit  |o  Uu-ittM^lviit  lltiwtf  MVi>i><i{n)  HUthorilies  which  thej 
ttttHhl  tttil  «>li»>M>«<  Itt  th-Kfptlv  to  citht.T.  The  OooctitntiaB 
IMtlk  llH>rtfhw«k  mNxiWHtHl.r  t«nv«l  ual  of  vsultaf  Soile 
S  W'*i  k  MrfMt^  of  |MWvn  fttrca^f  «iMliBK  m 
.isuw  Kvw  Itw  |wwww  tif  lk»  State  fvmnmmatm 
uyw«  «Vif  v^vi«  WNMttirtUNA;  mkI  tk*  pM¥^  «(  «ra7  ^ 

«l|pli]|D9  g*  itftM^H^    0«  lih»  aliM  kMi4.  at  b 

Mtc  <tMMMlMlN»««HfiMl  vaafei 


^^^^^  ^^^^^w  ^^^n 
t>AV>.v\     "  '  ■  I  rtl  1Mi>   bs 


CH.  T.] 


KtTLBS  OP  niTfSPRETATION. 


ne 


**The  pnT«niment,  then,  of  the  United  States  can  claim  no 
powers  which  are  not  granted  to  it  bjr  the  Constitution ;  and  the 
powers  actually  granted  innat  be  such  us  arc  expressly  given,  or 
given  hy  neoeasary  implicatiun.  Oii  the  other  hand,  this  in- 
dtrument,  like  every  other  Krant,  is  to  hare  a  reasonable  oon- 
Btriirtion  according  t«  the  imi>ort  of  its  terms.  And  whore  a 
power  is  expressly  given  In  general  terms,  it  is  tiot  to  bo  re- 
strained to  particular  cases,  unless  that  constmction  grow  out  of 
tlie  context  expressly,  or  by  ncc€«sary  implication.  The  words 
are  to  be  tJtken  in  their  natural  and  obvious  eenM^  and  Dot  in  a 
sense  unreasonably  ro«tricted  or  enlarged." 

§418.  A  still  more  striking  response  to  the  arirumcnt  for  a 
strict  construction  of  the  Constitution  will  be  found  in  the  Ian- 
gunge  of  the  court  in  the  case  of  Gibiions  v.  (^den,  0  Wheat  1, 
Ac  Mr.  Chief  Justice  Marshall,  in  detivoring  the  opinion  of 
the  court,  sajs:  "This  inalniment  contains  an  enumeration  of 
powers  expressly  granted  by  the  people  to  their  government.  It 
has  been  said  that  thew  powers  ought  to  be  construed  strictly. 
Bnt  why  ought  they  to  be  so  confitrued  ?  Is  there  one  sentenc*^  in 
the  Cmistitution  which  gives  countenance  to  this  rule  ?  In  the 
last  of  the  enumerated  powers,  that  which  grants  expressly  the 
means  for  carrying  all  others  into  execution,  Congress  is  au- 
thorized *  to  make  all  laws  which  shall  I>o  necessary  and  proper ' 
for  the  purpose.  But  this  limitation  on  the  moans  which  may 
[>c  used  is  not  extended  to  the  powers  which  are  confen'cd ;  nor 
is  Uicrc  one  sentence  in  the  Constitution  which  has  been  pointed 
oat  by  the  gentlemen  of  the  bar,  or  which  wc  have  been  aide  to 
discern,  tljat  preftcribes  this  nilc.  Wc  do  not,  therefore,  think 
onrsetves  juBtificd  in  adopting  it  Wtuit  do  gentlemen  mean  by 
a  strict  conatructiuo  ?  If  they  contend  only  against  that  cnlai^ed 
construction  which  would  extend  words  beyond  their  natural  and 
obvious  import,  we  might  question  the  application  of  the  terms, 
but  should  not  controvert  the  principle.  If  they  contend  fur  that 
narrow  constmction  which,  in  support  of  some  theory-  nut  to  be 
found  in  the  Constitution,  would  deny  io  the  gorenunent  those 
powers  which  the  words  of  the  grant,  as  usually  tmderstood,  im- 
port, and  which  are  consistent  with  the  general  vicxn  and  objects 
of  the  instrument, — for  that  narrow  construction  which  would 
cripple  the  government  and  render  it  unequal  to  the  objects  for 
which  it  is  declared  to  be  institated,  and  to  which  the  ]>oweTs 


320 


COXSTITDTION  Of  TRE  OKITQ)  STATES.  [bOOK  til. 


/ 


given,  as  fnirly  understood,  render  it  competent,  — then  we  oan- 
Dot  perceive  the  propriety  of  tbis  strict  coaatniction,  nor  adopt 
it  as  the  rule  by  uliich  the  Constitutiun  is  to  l>o  expounded.  As 
men  whose  intentions  require  no  concealment  generally  employ 
the  words  which  moat  directly  imd  aptly  express  Uie  ideaa  they  in- 
tend to  coiivfv,  the  eulit^liteiied  patriots  who  framed  our  Constita- 
tiou  and  the  people  who  adopted  it  miut  be  uudcnitood  to  have 
employed  words  in  Uieir  natural  sense,  sjul  to  have  intcnde<d 
what  they  have  Bsid.  If,  from  the  Empcrfcctiuu  of  human  lan- 
gutigc,  thurc  should  he  serious  doubts  respecting  the  extent  uf  any 
given  power,  it  is  a  well-settled  rule  that  the  obje>et8  for  which 
it  wus  given,  especially  when  those  objects  are  expressed  in  the 
instruiuent  itttclf,  should  have  great  inllueiice  in  the  construc- 
tion. We  know  of  no  reason  for  excluding  this  nile  from  the 
present  cose.  The  grant  does  not  convey  power  which  might  be 
benelicial  to  the  grantor  if  retained  by  himself,  or  which  can 
enure  solely  to  the  beuetit  of  the  grantee,  but  is  an  investment  of 
])ower  for  the  general  advantage,  in  the  hands  of  agents  selected 
for  that  purpose ;  which  power  can  never  be  exorcised  by  the  peo- 
ple themselves,  but  must  be  placed  in  the  bands  of  agents,  or  lie 
dormant.  We  know  of  no  rule  for  construing  the  extent  of  such 
powers,  other  tlian  is  given  by  the  language  of  the  instrument 
which  confers  them,  taken  in  connection  with  the  purposes  for 
which  they  were  coulerred. " '  (a) 

>  Stv  ■!*»  Id.  S2!,  Mid  Hr.  Oikt  JuKtiM  lUnUl'f  ofdatoa  b  Ogplea  v.  aumdrnv 
11  Whet.  It.  332. 

It  bai  b«tfi  ittnufctd  bjr  Pnaulmt  J.  Q.  Adanu^  tlud  "It  n  a  cumntluKa  ithicli 
inll  nol  eatufe  th«  obKmtiaa  of  a  pUJlaMpkiial  kulcffkii,  that  tht  Moatnutlv* 
]iait«n  of  tbo  u^iMttl  KMvmmont  kav*  beca  itrrtched  to  tbdr  txbttoat  ttndon  by 
llial  iwrty,  whM  In  ]x>n*r,  which  Iim  ban  moil  Uiidtt];  fctnpalMi  ef  th*  ttata 
•rnerrijpily  wlivn  uiiiuvratsd  with  At  autkarftjr  of  th*  Ualou  tbfBiHilTM.'  II*  widi, 
"of  theaa  incMuistciidt^  our  two  gtrtt  partita  caa  haro  little  to  n;  in  rrymil  of 
ouih  other."  Wttbaiit  ioqiiiring  into  the  jottiM  of  th*  rctDacli  in  grttml,  it  ma;  be 
tnif  tfatod  that  the  cmbaTgo  of  1 907.  and  Iho  aJmbtfoM  ot  LaufaiBiw  into  tbo  Dnion, 
we  veiy  atilkJBg  iUaitntion*  of  tha  appUcetlan  of  eooatnictiiniiMcen. 


(a)  "If  WD  have  a  doubt  r*lati*e  to 
any  pw**,  »«  «n|iht  m4  to  sntda*  it," 
WW  th*  diclanlka  of  Mr.  Edwud  Uv- 
iiigrtiHi,a*ani«a]b«n>rO(aigreai.  Hnut't 
lib  ef  LJTiBgtMi.  88S.  Thii^  b«  a 
marim  In  coMtitatiom]  gartrnmaa,  had 
the  approval  ef  Hr.  JcHmon.  In  th* 
IM  at  Louhlana,   bovcver,    be  did  not 


dmy  (hat  in  liit  ofiialoa  Iw  ma  «i«rcb!ng 
a  powtr  aot  oonfenvd  by  the  CanaUtutian, 
and  at  firei  ti«  ioolud  to  an  ■■ewlwiwt  of 
the  Comtitation  to  ratUV  the  aoqrinUos. 
So*  letl**  to  Mr.  DteelMMrids^  *  JcBtf 
ioD*«  'Woa^,  COO,  and  to  LfaKoIn,  Id. 
GM.  Rut  «unly  no  *nch  ratttEatkn  wm 
tiy.    A  iMiier  Ea  Sonthem  ofdniona 


CB.  T.] 


■uus  or  n 


821 


§  419.  IV.  From  the  foreg^oin^  cAngld^rations  we  deduce  tlto 
'  conclusinn  that,  sh  s  franu!  or  ftiitiiaiiic-iitA!  law  of  govvniiiivnt, 
th«  ConBlitution  of  the  United  Stat<>s  U  to  receive  a  rcwonable 
^interpretation  of  ita  lanifiiaee  and  its  powers,  keeping  in  view 
the  (>l)jectfl  and  purpoaoa  far  wbi<:h  those  powers  were  conferred. 
By  a  rcHAonalile  interpretation  we  mean,  that,  in  case  the  words 
are  snswptible  of  two  difft-n-nt  senKca,  the  one  strict,  the  other 
more  enlarged,  that  should  be  adopted  which  is  mofit  consonant 
with  the  apparent  objects  and  intent  of  the  Constitution;  that 
wbii'h  will  y:\vv  cfBeacy  and  lorct-  aa  a  ffovemmrHt,  rather  than 
that  which  will  impair  its  operations  and  reduce  it  to  a  state  of 
imbccilit}-.  Of  course  we  do  not  mean  that  the  words  for  this  ' 
piirpotse  arc  to  he  strained  bcjond  their  common  and  natural 
Aeuse,  but,  keepin;;  within  that  limit,  the  exposition  is  to  have  a 
^iair  and  just  latitude  so  as  on  the  one  hand  to  avoid  obvious 
mischief,  and  on  the  other  hand  to  promote  tho  public  good.' 

§  420.  I'his  consideration  is  of  g:re-at  importance  in  construing 
a  frame  of  government,  and  d  fortiori  a  frame  of  government  tlie 
free  and  voluntary  institution  of  the  people  for  their  common 
benefit,  security,  and  happiness.  It  is  wholly  unlike  the  case  of 
a  mnnieipal  charter  or  a  private  grant  in  respect  both  to  its 
means  and  its  ends.  When  a  person  makes  a  private  grant  of  a 
particular  tiling,  or  of  a  licemie  to  do  a  thing,  or  of  an  easement 
for  tlie  exclusive  benefit  of  the  grantee,  we  naturally  confme  the 

>  8m  Ogilm  r  SmuIm^  12  Wheat  B.  SSS,  0[4ii!on  <i  Mr.  Chitt  JctUM 
MmiImII 


'  tW  Mxl  ffiwnllon  W  pi«wUil  th« 
lUng  view  xery  clMrly:  "It  ma 
1  U>  n^  Out  tlu!  tlniUd  Stu«  gov. 
UEUt  MuM  not  ac^ain  tcrritorr  hf 
OMhaH  or  b^  am.  a*  mil  la  any  otlwr 
Dual  wnntgaty  va  Milh.  Vw*  «« 
I  b*  duuMMiibcd  in  onr  limit*,  and  not 
b*  anawfd  to  nwke  the  necEailj  «l 
ontk*  tike  tlwt  o(  Uw  UiMiiipfi  Binr 
oar  own  p  CmU  ctbrr  nailans  t>k«  t«Rl- 
Uiry  \iy  anniv  to  «>rorM  imlenuiitj-,  or 
pMthlii'  tt  for  ttw  aka  of  gioKe  and 
Mrfeljr.  ud  a  Mantry  tlks  Uia  United 
SuUa  b*  obl%*d  U>  fftifi  ia  ooneiiod 
boondariM,  and  b*  tmn^  to  death.  It 
might  tia,  for  wast  cf  tha  pomr  of  txpan- 
tloB  t  Ko :  Um  Prvidant  tad  Saute  bad 
VOL.  I.— SI 


th«  Iraty-maklng  pcwrr.  and  tlM  Con- 
j(rtM  «M  •ipTvuly  Kivm  Uia  powtr  10 
paaa  all  lam  BiMwaty  to  carry  Ittu 
poiKr,  and  all  otbar  po««n  tmIpI  in  tlM 
ggwtiMDm^  into  rxfculxm.  TliU  poser 
of  aMivMUoD  and  Mpannon  t>  au  ahio. 
luuly  BcoMMry  (lovar,  wiling  ttvm  tha 
vvty  exUtanoa  of  avary  natio*,  and  naan- 
tially  vital  to  «nr  Uiitilutioni.  tapable  of 
liaaiing,  lllw  Atli^  a  vortd  in  tbdr  eta- 
bnw*  of  ftaadon.  Th*  ttivtata  Slataa 
could  >ot  acquire  tbe  tarritary ;  and  if 
C<uignM  mold  not,  tha  progna*  of  civil 
Ilbrrty  HatU  wm  coDitraJMd  and  Moppnt 
within  our  Infant  dimenaiana.''  II.  A. 
Wlw,  TnatiM  on  Terrlicrlal  Oavtrantiii 
and  AdnlMtai  of  K«>  Buiit.  67.    C. 


822 


CONSTITUTION   OP  THB  tTKITEO   STATEa.  [bOOK  HI. 


teroiH,  however  genernl,  to  tho  objeot«  clearly  ia  the  rieir  of  tbo 
parties.  But  ercn  in  sueh  cases  doubtful  woi'ds  vithin  the  evope 
of  those  objecta  arc  construed  most  favoraliljr  far  the  grantee, 
becaiiae,  though  in  dorog;ation  of  the  rights  of  the  frraator,  they 
tro  promoti^'e  of  the  gt^nerel  rights  aecured  to  the  gruntc«.  But 
vhcro  tho  f^rsnt  enures  solely  and  exclusively  for  the  benefit  of 
the  grantor  himtmlf,  no  one  would  deny  the  propriety  of  (riving 
to  the  words  of  the  grant  a  benign  and  litvpral  interpn-tution. 
In  cftses,  however,  of  ]>i-iTate  grants,  the  objects  generally  arc 
few;  they  are  ccrtnin;  they  arc  limited;  thcr  neither  rwiuirc 
nor  look  to  a.  variety  of  means  or  changes  which  are  to  control 
or  modify  either  the  end  or  tho  means. 

§  421.  In  regard  also  to  municipal  charters  or  pnblic  grants, 
similar  considerations  usually  apply.  Tliey  are  generally  deemed 
reatrjctive  of  tho  royal  or  public  prerogative,  or  of  the  common 
rights  secured  by  the  sctirnl  orgnnixation  of  the  govprnment  to 
othpr  individuals  or  communities.  They  arc  supposed  to  be  pro- 
cured, not  BO  much  for  public  good,  as  for  private  or  local  ood- 
venience.  They  are  supposed  to  arise  fmin  personal  luilicitatioa 
upon  general  suggestionii,  and  not  ex  etrta  cati*a,  or  ex  mero 
motti  of  the  king  or  govemincut  itself.  Henc«  such  charters  ore 
often  required  by  the  mnnictpal  jurisprudence  to  be  conatmed 
strictly,  because  they  yield  aoniething  which  is  common  for  the 
benefit  of  a  few.  And  yet  where  it  is  apparent  tliat  they  proceed 
upon  greater  or  broader  motives,  a  liberal  exposition  is  not  only 
indulged,  but  ia  encouraged,  if  it  manifestly  promotx^  tho  pub- 
lic good. '(a)  So  that  wo  see  that  even  in  these  cases  commoD 
senae  often  indicates  a  dopartnrti  from  a  narrow  and  strict  con* 
struction  of  the  terms,  though  the  ordinary  rotes  of  men  munici- 
pal law  may  not  havo  favored  it 

§  422.  But  a  ooastitution  of  government,  founded  by  the  peo- 
ple for  thenuttlvca  and  their  posterity,  and  for  objects  of  the  most 
momentous  nature,  for  pcr]K.-tual  union,  for  the  eetnbliitbment  of 
justice,  for  the  general  welfare,  and  for  a  perpetuation  of  the 
blesainga  of  liberty,  neocsaarily  requires  that  every  interpretation 
of  its  powers  should  have  a  constant  reference  to  these  objects. 
No  interpretation  of  the  words  in  which  those  powers  are  granted 
■  Sm  Giblmu  «.  OgdfBv,  0  Wbw.  R.  1,  ISO. 

(t)  Fvrrint  P.  CheMpaikt  A  Ddsom  Craal  Co.,  P  H««.  ITS  i  Ut  BfaghanUo 
Btiip.  *  Wdt.  SI. 


CH.  T.] 


BVLES  OP  I!CrrRPRCTAnO!>. 


328 


can  Iw  a  soanci  one  vhich  narroim  doim  their  ordinary  import 
BO  aft  to  defeat  thoBe  objccta.  Tliat  would  be  to  destrov  the 
Bpirit  and  to  cramp  the  letter.  It  has  been  jnstly  dwcrvcd  that 
*'the  CoDBtitotion  unavoidably  di>alB  in  f^ueml  lanii^uge.  It 
did  not  suit  the  purpUHCs  of  thu  pL-ople  in  framing  tliis  great 
churtor  of  our  libcrtiL<s  to  provide  fur  miouto  Bpecificfttion  of  Ita 
{wvurs,  or  to  dtrvlure  the  means  by  vhich  those  \mven  should  bo 
carried  into  execution.  It  vas  for«Men  that  tt  irmild  be  a  peril- 
OQsand  diRicult,  if  not  an  impracticable  task.  The  instrument 
vaa  not  intendwi  to  proride  merely  for  the  exigencies  of  a  few 
years,  but  va»  to  endure  throng  a  long  laptte  of  ages,  the  events 
of  which  were  loclced  up  in  the  inacratablo  purposes  of  Provi- 
dence. It  could  not  be  foreseen  wbat  new  changes  and  modilica* 
tions  of  power  might  b«  indisppniiable  to  efToctuntc  Uie  genenkt 
objccta  of  tho  charter,  and  reatrictiona  and  specifications  which 
at  the  pi-pspnt  might  spcra  salutarj-  mieht  in  the  end  prove  the 
overthrow  of  the  system  ita^lf,  Ilonce  ita  powem  are  cxjiresscd 
in  general  tcrmii,  leading  the  U-gislature  from  time  to  time  to 
adopt  its  own  means  to  cffectualo  legitimate  objecta,  and  to 
mmild  and  m'>d(;l  tlio  exercise  of  ita  powers  as  its  own  wisdom 
and  tho  public  interests  should  require."'  Language  to  the  same 
effect  will  be  found  in  other  judgments  of  the  iiaron  tribunal.' 

§  423.  If,  then,  we  arc  to  give  a  reasonable  conatmction  to 
this  instrument  as  a  constitution  of  government  estaltlifthed  for 
the  common  good,  wc  must  throw  aside  all  notions  of  subjecting 
it  to  a  strict  interpretation,  as  if  it  were  subvcmivc  uf  tho  great 
interests  of  society,  or  derogated  from  the  inherent  sovereignty 
of  tho  people.  And  this  will  naturally  lend  us  to  some  other 
rules  properly  belonging  to  the  subjoct. 

§  424.  V.  Where  the  power  is  granted  in  general  terms,  the 
power  is  to  be  construed  as  coextensive  witli  the  terms,  unless 
some  clear  restriction  upon  it  is  deducible  from  the  context 
Wo  do  not  mean  to  assert  that  it  is  necesaanr  that  auch  restric- 
tion should  be  expressly  found  in  the  context  It  will  be 
sufficient  if  it  arise  by  necessary  implication.  But  it  is  not 
sufficient  to  show  tliat  there  was,  or  might  have  been,  a  sound  or 
probable  motive  to  restrict  it  A  rcitriction  fonnded  on  conjec- 
ture is  wholly  inadmisgibte.    The  reason  is  obrioas :  the  text ' 


>  Hant«r  n.  JUrtin,  1  Vbol.  H.  SIM.  SS0.  337. 

■  See  Oibbou  v.  Opim.  >  WIuU.  B.  1,  UT.  he.,  S2S,  4e. 


324 


OOXSTnTTIOS  OF  THE  CSITED  STATES.  [bOOE  HI. 


adopted  bj  the  people  in  itB  obvious  and  general  senae.  We 
hare  no  means  of  knowing  that  any  particular  gloss  short  of  this 
sense  vas  cither  contomp1ttt«d  or  approved  by  the  people;  and 
such  a  gluss  uiii^t,  thuui:)i  sutisfactory  in  one  Statv,  hare  bi-en 
tho  rcry  ground  of  objection  in  another.  It  might  hav«  formed 
a  motiTe  to  reject  it  in  one  and  to  adopt  it  in  anotlier.  Tho 
sense  of  a  part  of  the  people  has  no  title  to  bo  deemed  the  sense 
of  the  whole.  Motives  of  St*te  policy  or  State  interest  may  prop- 
erly have  infiiienco  in  the  question  of  ratifying  it;  hut  the  Con- 
stitution itaelf  mii»l  )>e  expounded  as  it  standfl,  and  not  as  dmt 
policy  or  that  interest  may  seem  now  to  dictate.  We  are  to 
oonaCraei,  and  not  to  frame,  the  instrument.^ 

§  425.  VI.  A  power,  given  in  general  terms,  ia  not  to  be  re> 
stricted  to  particular  cases  merely  because  it  may  be  susceptible 
of  abuse,  and  if  abused  may  lead  to  mischievous  consequences. 
This  argument  is  often  used  in  public  debate,  and  in  its  cummoQ 
aspect  addresses  itself  so  much  to  popular  fcura  and  prejudices 
that  it  iusonsibly  acquires  a  weight  in  tlic  public  mind  to  whioh 
it  is  nowise  entitled.  The  argument  ah  iiuMttvementi  is  suffi- 
ciently open  to  qnestion  from  the  laxity  of  application  as  well  as 
of  opinion  to  which  it  leads.  Bnt  the  argument  from  a  possible 
abuse  of  a  power  against  its  existence  or  use  is  in  its  nature  not 
only  periloiHi,  but  in  respect  to  governments  would  shake  their 
very  foundation.  Every  form  of  government  unavoidably  tn* 
eludes  a  grant  trf  some  discretionary  powers.  It  would  be  wholly 
imbecile  witliout  thom.  It  is  impossible  to  foresee  all  tho  ex- 
igencies which  may  arise  in  the  progress  of  events  connected 
with  the  rights,  duties,  and  operations  of  a  government.  If 
they  could  be  foreseen  it  would  be  impossible  ah  attt«  to  provide 
for  Lhem.  The  means  must  be  subject  to  perpetual  modihcation 
,  and  change;  Ihoy  must  bo  adapted  to  the  exisiting  manners,  hab- 
V  its,  and  institutions  of  socie^,  which  are  never  stationary;  to 
the  pressure  of  dangers  or  noceanities;  to  the  ends  in  view;  to 
general  and  permanent  operations  as  welt  as  to  fugitive  and  «z< 
traordinary  emergenciea.  In  short,  if  the  whole  society  is  not 
to  bo  pcvoiutioniied  at  every  critical  period,  and  remodelled  in 
every  generation,  there  must  be  left  to  those  who  administer  the 
governmeat  a  very  largo  mass  of  discretionary  powers,  capable 
of  greater  or  less  actual  expansion,  according  to  circumstances, 

)  8«c  Stst^  *.  CroraiaAUd.  <  WImM.  B.  WXVA 


en.  T.] 


BDUS  OP  INTEBPSETATION. 


825 


/ 


and  MufTicionlly  flexible  not  to  involve  the  nation  in  u(t«r  destnie- 
tion  from  the  ri(ci<]  limitations  imposed  tipon  it  by-au  improvi- 
dent jmloiwy.  Every  power,  however  limited,  a»  well  ns  broad, 
is  in  its  own  natiire  flusceptihle  of  abuse.     No  constitution  can 

,  provide  perfect  guai'ds  against  it.  Con^dence  must  be  reposed 
somewhere,   and  in  free  goremmenta  the  ordinary  securities 

\again8l  abuse  are  found  in  the  responsibility  of  nilere  to  the 
people,  and  iu  the  just  exercise  of  their  elective  franchise,  and 

'nltimately  in  the  surcreigii  power  of  change  belonging  to  them  in 
cases  roquiriu);  extraordinary  remedies.  Few  caiies  are  to  be 
supposed  in  which  a  power,  however  general,  will  lie  exerted  for 
the  permanent  oppression  of  the  pcoplix'  And  yet  cases  may 
easily  I>c  put  in  which  a  limitation  upon  eueli  a  {mwcr  might  be 
found  in  practice  to  work  miacliief,  to  incite  foreign  aggression 
or  encourage  domestic  disorder.  The  power  of  taxation,  for  in- 
stance, may  bo  carried  to  a  ruinous  excess,  and  yet  a  limitation 
upon  tliat  power  miglit,  in  a  given  cose,  involve  the  destruction 
of  the  independence  of  the  country'. 

§  42G.  VII.  On  the  other  hand,  a  rule  of  eqnal  importance  is 
not  to  eniai^  the  construction  of  a  given  power  beyond  the  fair 
aeopc  of  its  tenns  merely  because  the  restriction  is  inconvenient, 
impolitic,  or  even  mischievous.'  If  it  be  mischievous,  the  power 
of  redrcsaiog  the  evil  lies  with  the  people  by  an  exorcise  of  the 
power  of  amendment.  If  they  do  not  cliooae  to  apply  the  remedy, 
it  may  fairly  be  presumed  that  the  mischief  is  less  than  what 
would  arise  from  a  further  extension  of  the  power,  or  that  it  is 
the  lc«8t  of  two  evils.  Nor  should  it  ever  be  lost  sight  of,  tliat 
the  government  of  the  United  States  is  one  of  limited  and  enu- 
merated powers,  and  that  a  departure  from  the  true  import  and 
sense  of  its  powers  i»ptv  tanto  tlie  establish mrut  of  a  new  consti- 
tution. It  is  doing  for  the  people  wluit  they  have  not  chosen  to 
do  for  themselves.     It  is  usurping  the  functions  of  a  legislator, 

>  Mr  JnMka  JohnMQ.  In  d«ll«i»ring  tha  «p(alM  «f  tht  ooort  ia  Aadenon  g.  Dmui 
<«  WttnL  S04.  ftM),  WW  tb*  follotrii^  Mcpnutrt  knKWffi:  "IU  Mm  k  Otoftei 
that  fttMnunent  ema  «xbt  vithoot  kaTing  ib«  •nrdt*  ot  iU*cnti««i  MaMriiwK. 
Pulilfe  iKuri^  ^^ut  tho  >buM  of  ntcli  diatrstion  niwt  ph*  an  raipinalbilitr  and 
•laiml  »|if««U  to  pubUo  •{qmbadoa.  Wbcn  all  poinr  i>  deriml  Tkob  the  pt<»iils, 
Md  p«blio  ftuKtkaariM  at  ahort  Intamla  Atpo^  h  at  tbt  fort  of  tbn  p«pte,  t»  b* 
TCHtmad  agiun  «alr  at  tbdr  ova  villi,  Indlvbhul  ftan  maj  b«  aknnad  b;  iba  i 
■Mm  of  ImaginalifliD.  bat  indivUual  Wbvtj  oaa  b«  In  Uttla  dangtt." 

*  Sm  Unttnt  StaUa  h  faimc,  t  Cnack,  SS8. 


326 


coKsrrrcnos  op  the  dhited  btates.        [book  m. 


/ 


and  deserting  those  of  an  expounder  of  the  lu.w.  A^^^icnts  drawn 
from  inipolrcy  or  tncMivenienc'e  ought  here  to  be  of  no  veigfab 
The  only  Bound  principle  is  to  declare,  ila  lex  tcripta  est,  to  fol- 
low, and  to  obey.  Nor,  if  a  principle  so  just  and  conclusiro  (X>uld 
be  oTorlookcd,  could  there  well  be  found  &  more  onsafe  guide  in 
practice  than  mere  policy  and  convenience  3Ien  on  such  uih- 
jcctacomploxionnllydiffGrfromcuch  other.  Thu  tuune  men  differ 
from  tJiemaelvca  at  different  timva.  Temporary  duluaitma,  prc- 
ju(lic«ei,  excitvmcntti,  nnd  objcctB  have  irniiiatiblc  influence  in 
mere  qucsliona  of  policy.  And  the  policy  of  ono  Ago  laay  ill  auit 
the  wishes  or  the  )>ulicy  of  another.  The  Constitution  is  not  to 
bo  subject  to  such  (liictutttiona.  It  ia  to  hare  a  fixed,  uniform, 
permanent  coniatructioii.  It  Bhoiild  be,  »n  for  at  least  as  luiniau 
infirmity  will  allow,  not  de{>endont  upon  tlie  paitsiona  or  parties 
particular  time*,  bat  the  same  yesterday,  to-day,  and  forc^'cr. 
I  427.  It  has  been  oh»or>'<>d,  with  great  corrpctness,  that  al- 
though the  spii'it  of  an  injilninieut,  especially  of  a  coiistitutioo, 
is  to  be  respected  not  less  than  it»  letter,  yet  the  spirit  ia  to  be 
collected  chieSy  from  the  letter,  (a)  It  would  be  dangerous  in 
the  extreme  to  infer  from  extrinsic  circumstancea  that  a  caae,  for 
which  the  words  of  an  instrument  expi-easly  provide,  shall  be 
exemptwl  from  ifa  operation.  Where  words  conflict  with  each 
other,  where  the  different  clauses  of  an  instnimt-nt  iMsar  upon  each 
other,  and  would  be  inconsistent  unless  the  natural  and  common 
import  of  words  be  variwi,  {.-onatruction  becomes  neoeaaary,  and 
a  departure  from  the  obvious  meaning  of  words  is  justifiableu 
But  if  in  any  case  the  plain  meaning  of  a  provision,  not  contra- 
dicted by  any  other  provision  in  the  samo  iu»tniment,  is  to  be 
disregarded  because  we  IrtHcvo  the  framera  of  thut  instnuncnt 
could  not  int«nd  what  tlicy  say,  it  must  bo  one  where  the  absurd- 
ity and  injustice  of  applying  the  provision  to  the  case  would  bo  so 
monstrong  that  all  mankind  would,  without  hesitation,  nnlto  la 
rejecting  the  applicjition. '  litis  language  has  reference  to  a  caso 
iriiere  the  words  of  a  eouBtitatioiial  provision  arc  souglit  to  bo 
reatricted.  But  it  appears  with  eixual  force  where  they  arc  sought 
to  bo  enlarged. 

1  SCarRls  «.  C^omitiwhMU,  4  WhMt  R.  12S,  BOS. 


32a  t  Cactuaa  a.  Tu  Saiby,  M  W«iul. 
S81  i  VjaAma  >.   Piwpl^   18  V.  V. 


»1,  433,  477  :  IVopU  V.  G>)l>slMr.  4 
Ulck.  Hi  t  St>t*  >.  SutoB,  S  0«ld.  tS3 ; 
Dmurl*  <n  StatuH>,  bf  Poitw,  303,  203. 


ca.  v.] 


BI:LFS   op  INTEHPRETATION. 


82T 


§438.  VIII.  Noconelructionof  a  giveu  power  i»  to  be  allowed 
which  plainly  defeats  or  impairs  ita  avowed  objccta.  I£,  therC' 
fore,  the  words  are  fairly  suHccptilile  of  two  iQtcrprctaliuiui,  ac- 
cording to  thvir  oummon  aenae  and  use,  the  one  ut  which  wuald 
defeat  OQO  or  all  of  the  ohjocta  fur  which  it  wa«  obviously  ^iwn, 
and  the  other  of  which  would  preHerve  and  promote  all,  the 
former  intcrpntutioii  uuglit  to  Iw  rejected,  and  the  IntUtr  he  held 
tlw  tru4]  loterpn-tation.  This  rule  results  from  the  dictat«a  of 
mere  cumiuoii-scnso,  for  every  ituitrument  ought  to  be  so  con- 
strued, vt  Toai/i*  viihal,  quam  pcreat,^  For  iuHtanee,  the  Conati- 
tiitioii  confers  on  Congress  tho  power  to  declare  war.  Now  the 
word  deetare  has  several  senses.  It  may  nicun  to  proclaim,  or 
publish.  But  no  person  would  Imagine  that  this  was  the  wholo 
sense  iu  which  the  word  is  used  in  tliis  oonaectioo.  It  should  be 
interpreted  in  the  nense  in  which  the  phrase  is  luied  among  na- 
tions when  applied  to  such  a  subject-matter.  A  power  to  declare 
war  is  a  power  to  make  and  carry  on  war.  It  is  not  a  tnero 
power  to  make  known  au  existing  thing,  but  to  give  life  and 
effect  to  the  thing  itself."  The  true  doctrine  has  been  expressed 
by  tho  8u])rvnie  Court;  "  If  from  the  imfferfcrtion  of  humnn  Um- 
guage  there  should  bo  any  serious  doubts  respcctiug  the  extent 
of  any  given  power,  the  objects  for  which  it  waa  given,  e8i>ecinlly 
when  those  objects  are  expressed  in  the  inntrumeut  itaelf,  should 
have  great  iuflucnce  in  the  construction."' 

I  429.  IX.  Where  a  power  ia  remedial  iu  ita  nature,  there  is 
mnch  reason  to  contend  that  it  ought  to  be  construed  liberally, 
lliat  was  the  doctrine  of  Mr.  Chief  Justice  Jay  in  Chisholm  i'. 
Oeorgia,*  and  it  is  gi-nerally  adopted  in  the  interpretation  of 
laws.*  Bui  this  liberality  of  ex|)OBilion  is  clearly  inadmissible 
if  it  extends  beyond  the  just  and  ordinnry  aejine  of  the  terms. 

§  4H0.  X.  In  the  interpretation  of  a  power,  all  the  ordinary 
ud  appropriate  means  to  execute  it  are  to  be  deemed  a  part  of 
the  power  itaelf.  This  results  from  the  very  nature  and  design 
of  a  constitution.  In  giving  tlie  power,  it  does  not  int^-nd  to 
limit  it  to  any  one  mode  of  cxerciBing  it,  exclusive  of  all  othcm. 
It  must  be  obvious,  aa  haa  beoa  already  suggested,  that  the 


I  Bm  Bujcm'*  AUidg.  ButaU  I.  ;  Viitel.  B.  9,  eh.  17.  ||  »T  to  SSt^  »t  lo  «». 

•  Bm  ^  «.  n^cr,  4  Ul\.  R.  37. 

■  OibboM  w.  Ogam.  9  WliMt.  R.  1,  Ita,  »«. 

*  S  tha.  B.  41*.  •  BuM>'(  AWdK.  SUUIa  L  8. 


828 


coxsnrcTioN  op  thb  mtrrro  states.        [book  m. 


means  of  cnrrying  into  effect  the  objectB  of  a  power  may,  nay, 
must  be  varied,  in  order  to  adapt  theniRelvrn  to  the  exi^Bcies  of 
the  nation  at  different  times.'  A  mode  eflicacious  and  mieful  in 
one  age,  or  nnder  one  posture  of  circnmatancea,  may  be  wholly 
Tain,  or  even  mischierooa  at  any  other  time.  Govormntnt  pre-)  I 
8up|K)ec»  the  existence  of  a  perpetual  mutability  iu  iU  own  operJ  \ 
atione  on  thoae  who  are  ita  subjects,  and  a  perpetual  flexibility  in 
adaptinii  itnelf  to  their  wants,  their  intercata,  their  habita,  their 
occupational  and  tlteir  InfinniUea.* 


>  The  FnfanUst.  1T«.  ii. 

*  Th«  rauMing  of  Mr.  ChM  Jiutltc  HxnhaU  od  thi*  Mt^eet,  in  UeCnnooll  «k 
MaijUnd  (t  niuat.  810),  b  m  coftml  Mul  MtittmUirj,  that  «■  ituU  roitBia  to  du 
It  *l  \vjfe.  After  hiving  mBukcd  ih»t  wonU  tiavv  ruioa*  m«*m,  »ai  that  what  U 
IIm  tra*  (onBtnirUon  of  uij  lunl  iu  the  CointilutiaD  MUM  Jppoad  npoM  the  ratjtcl, 
the  oMitext,  uul  the  intcDtioni  of  the  people,  to  be  gRlhMtd  ban  the  iiwtnnMati  bt 
)  jfoceedj  thn* :  — 

"Hm  •nlgfKt  !•  th«  uwBtinn  of  thoe*  gn»t  fown  oa  wMch  Dm  mUu*  of  ■ 
BMko  iwenlltlly  dapemU.  It  iiiuet  hitv«  been  ^«  littantka  «f  than  who  g»T«  iImm 
powen^  to  innuc,  u  far  a*  humnn  pniilf  nca  oould  imure,  (htfa-  bcMfcial  aiuaatlafk 
TU«  Doold  net  be  done  by  confiding  Ibc  choice  of  mruii  to  meh  mmtm  Va^Att,  u  aot 
to  leave  it  in  lh«  power  of  Congrm  to  adotit  any  «hi«h  HOght  be  spfsafdUiv  '^ 
vhich  1TCIV  condudTc  lo  the  end.  Thii  prorUIou  U  Budo  in  ■  OoMttUIJoa  intended 
to  «Ddiir«  for  *gM  lo  eom«.  ud,  ciMMitiwndj,  to  h«  adapted  to  lb*  Taiteai  (nta  ol 
'  bilnan  affairs.  To  hare  pnscribed  the  nwHia  tgr  whioh  govcnuMot  (boaU,  in  all 
futare  titar,  ciccute  ita  powm,  would  h*T*  betn  to  ttutige  mtjnlj  the  chacKter  of 
the  inilrainuat  aud  giie  it  t3ie  propcrtM  of  a  Icgd  oode.  It  woaU  luve  been  an  «■• 
«iM  allMnpl  to  praride,  by  imnalaht*  rulaa,  for  ezlgencte*,  which.  If  foreMrn  at  aU, 
mot  hate  been  M*a  dimly,  and  whltli  em  be  h««t  protided  foraa  Iheyeeear.  To 
hare  dtcbired  that  t)w  ba«t  mtmnt  ahall  sot  be  naed.  bwt  thoM  alooe  without  wUch 
the  power  given  amiM  be  nugitloij,  «««ld  hare  beca  to  deprire  the  legidatiiK  «f  the 
■  fapeHtj  to  arail  iteelf  of  ciperJ«iK%  to  «Mrpiae  iti  leMon,  aad  to  aoeooiBodala  it* 
llgbbtion  to  cimnnatawM.  If  wc  appiy  lUa  piBclpU  of  oontfnrtiim  to  any  ef  tbe 
yvtem  of  tha  gDvenmcati  >e  aliall  Had  It  m  pwnkioD*  l«  lu  ep««atk«)  thai  we  ahaU 
be  ocKDpelled  to  dtaeard  H.  The  powtn  rnted  in  Comgmt  may  earlaluJy  be  ouried 
inio  eteeutiou  oitbenl  pciMfifanig  an  oath  of  offioe.  The  jcmt  lo  exact  thi*  lecnritf 
for  the  blthfol  parfon*ane>  of  dn^  1*  Mt  gi*(^  aor  ia  it  indiipenaaUjr  mcmmij. 
The  dWereal  depmmnta  nay  b*  eatahllabed.  tazM  May  be  inip«a»d  aad  eaOMMd, 
I  tmlm  tad  aarlM  May  be  niaed  and  nuinUiaed ;  and  nwaty  Bay  be  borrowad,  with- 
tint  nqaMnf  anoathof  oSee.  It  ini^t  be  argoad,  with  m  nnch  planAQUy  Motbtv 
I  iartdMlal  penren  hare  becei  ajBulad,  thai  the  coormtioa  mt  nut  uaniiadfsl  «l  thi* 
tntiJeetiBa.  The  oath  which  niitht  be  exulted  — that  of  Bdellly  to  lh«  Cnwititvlioa  — 
ia  fceanibed,  a»d  no  other  €B«  be  twjulred-  Tet,  he  would  be  chu;^  with  inanity 
who  ahonld  ooalieid  that  the  kgidatore  ni^t  no*  *«pcndd,  to  the  ealh  dinoled  \ff 
the  Coatfttnika,  poA  other  ««th  «f  nlSea  a*  Ha  wiadom  ni^t  auggeat 

"So,  with  raifMct  to  the  whoU  panal  code  of  the  ITmited  But«:  wboiee  attata  the 
^powM  to  poaUi  ik  caaaa  not  pvacrlbed  by  the  RcMtUatloa  t  AU  adoUt  that  tha  fjor- 
latnnaiat  may  l^tiwataty  panhh  any  vloktioa  of  Ita  law ;  aad  jst,  thU  it  not  anaong 


CH.  v.] 


KULKii  OP 


tATtOW. 


329 


§  431.  Beaides,  if  the  pow«r  onlj-  h  giTen,  v-ithout  pointing 
out  the  means,  how  are  ve  to  ascertain  that  any  one  means  U 
esclusively  within  its  scope  rather  than  another?  The  same 
course  of  reasoning  which  would  deny  a  choice  of  means  to  exe- 
cute the  power  would  reduce  the  power  itself  to  a  nullity.  For, 
as  it  nercr  could  be  domonatraled  that  any  one  mode  in  particu- 
lar was  intended,  and  to  bu  cscluBirely  employed,  and  as  it  might 
bo  demonstrated  that  other  means  mif^ht  be  employed,  the  (|ucs- 
tioD  whether  the  power  n'erc  rightfully  put  into  exercise  would 
forever  be  subject  to  duubt  and  coiitro^t'ray. '  If  one  means  is 
adopted  to  give  it  effect,  and  is  within  its  »copc,  because  it  is 
apiiropriuto,  how  arc  wc  to  cscaifc  from  tlie  arjniment  that  an- 
other, falling  within  the  same  predieanicnt,  is  equally  wilhiu  its 
ticujKi  ?  If  each  18  eciunlly  appropriate^  how  is  the  choice  to  be 
made  between  them  1    If  one  is  selected,  how  does  that  exclude 

th*  «niiiiim«t«d  powmi  of  Congr***.  Tlw  right  to  t«brc«  tlM  nbMrvtuM  of  liir,  bjr 
pmiMhiag  it*  InftoctioD,  night  be  deniod  witli  the  nun  pluiuUlity,  brcnun  it  it 
MqimMlj  gjina  in  tome  ouo.  Conjirata  ii  cmpowcrBd  '  I»  provide  lor  the  pauiibmcDt 
of  oottatvrftiliag  lh«  McaritlM  M>d  (nvrnit  oodn  et  tfa*  Cnitcd  StalMv'  and  '  1«  dcAiiB 
•ad  paaiA  pindM  «Dd  TtlonlM  oomialtttd  on  th*  hl^h  ku,  and  olTineM  ^iiiitt  IIm 
Uw  of  Mtioni;'  Tin  wevoni  powtra  of  Coofftm  OMJ  «xi*t,  ia  m  icr^  iin{Mt<<ct  «tat«, 
t«  b«  tUM,  but  tbtj  may  cxiit  and  Ik  canicd  into  snention,  althfuigli  no  pobli&nwnl 
alMvU  bo  lalllrlMl  in  caiM  wham  tha  right  t«  |niniili  la  not  upmdy  glT«n. 

"Take,  lor  tiaMiple,  thn  |>i>wvt  'to  tmablith  |icM-olHc<a  and  pMt-roMb.'  Tht* 
power  ia  cxeontcd  bj  the  aingiii  xt  of  makittg  the  CBtntilislinK-ut.  But,  from  lU*  ba 
bMB  hifcmd  the  power  and  dntf  of  cnrrjiug  the  mail  iLlong  the  paii-roaJ,  frtm  uio 
|Mat«IBM  to  aaotliM.  And  fn>in  lbi>  implied  po««r  haa  again  hnai  infurrad  lb*  risl>t 
to  pqslifa  thooB  who  atcal  l«tt«n  tnia  th«  pcrat.oiflc*  or  rob  tb«  null.  It  Mtjr  b«  tali, 
with  aome  plaonbilitjr,  that  tli«  right  Ui  mrr;  ihv  Dini),  snd  to  piiiiL«L  thoM  wlw  rob 
it,  ia  1104  i»diq>«(uah)]r  neoeanry  to  tba  eatalilLdimeiit  ul  a  iKKiI>oflii:e  uud  pori-rwd. 
Tbix  rifht  b  indted  Mwntial  to  tiM  bweSdal  ocerciw  of  the  povcr,  but  not  lodii* 
pWiMUy  ucMau;  to  It*  azlatonoa.  Bo,  of  the  pnnlihnirnl  of  tho  crinua  of  (tcaUn^ 
or  Udl^ing  a  mntd  m  proraaa  of  •  oonrt  of  ih«  Utiltnl  liuttM,  or  of  jwijiuy  Ija  auck 
eo«rL  To  pvaUt  UiMe  offeaoM  h  oaruiuly  tonduclTo  to  tlie  due  odmiaiantion  of 
Jwtlce.  Bat  eomU  najr  mia^  and  vmf  daeide  tbt  cauaaa  l>raught  before  them,  Ibragh 
tueh  eriaaa  Mcap*  |nnlihnuaL 

**TW  bantfnl  lallitnKO  of  titl*  narrow  canRtractlDn  on  all  tha  oporatkaa  of  tb* 
COTpninaent.  and  thr  aliaotnte  iinjiiwdeaUUtj  of  nialDtalaln^  it  aitlMal  rmdaring  th« 
goTcrtunent  incomprttat  to  lb  great  oluBctl^  mi(!bt  be  illuatnl«l  bjr  wmierDua  ex- 
amplea  dnwo  ttom  tho  OeauthatMa  and  (rmn  onr  law«>  Uio  pod  iinae  <t  tht  pahlle 
ha*  proAoniKad,  withont  iMiltatloB,  tkat  tha  powet  of  panlduBMit  appartabia  1o  *ne- 
ntj,  and  mair  be  exerrikcd,  whenever  the  aoroelfn  haa  a  right  to  act,  aa  inciduta] 

Ilia  coMlitnlioaa]  poweri.     It  ia  a  meana  for  carrTUg  into  execution  all  aoeneigii 
a,  and  may  be  nied,  allbouKh  sot  iBdi>[«naaU<r  »tctmttj.     1|  b  a  right  ind- 
dental  to  the  penrer  and  eondiuliv  to  it*  tenefabl  utrdM," 

>  8m  Unltod  fttatea  v.  Fither,  S  Craneb.  iU. 


8S0 


coNsnTcnos  op  thb  ostted  biatjs.        [dook  iir. 


all  others  ?  If  one  U  uioro  nppropriute  at  one  time,  aud  another 
at  onoUicr  time,  wliiTC  ia  Uio  rcstrictiun  to  be  found  which  al- 
lowt)  tbo  Olio  luid  (luniCH  thu  uthcrT  A  power  granted  in  a  franio 
of  ROwmmvnt  i»  nut  contemplated  to  ba  eshausted  in  a,  single' 
exertion  of  it^  or  unojtatu.  It  is  intended  for  froo  and  |>erma- 
□entoxercise;  aud  if  tbu  discretion  of  tliv  funetionaries  who  aro- 
to  uxercise  it  is  not  timitod,  that  discretiun,  cspeoiully  as  those' 
functiouaries  must  necvssaril]'  change,  most  bo  coextensive  with 
the  [Mwer  itself.  Take,  for  instance,  the  power  to  make  war, 
In  one  ago,  this  would  authoria;  tbo  purchasit;  aud  employment  of 
the  weapons  then  ordinurilj  usod  for  tliis  purpose.  Bat  sappoM,j 
these  wcapoDH  are  wholly  laid  uitide,  and  ulbors  suhatituted  moro 
eflScivttt  and  powerful,  is  the  irovemment  prohibiti-d  from  cm- 
ploying  the  new  modes  of  offenco  aud  defcncu  ?  Surelj  not.  Tbo 
tnventioa  of  f^unpowder  supenMMlvd  tho  old  mode*  of  wiirfurc,  and 
may  perhaps,  by  future  iuvcntioua,  be  stiporxeded  hi  its  lum. 
No  one  can  seriously  doubt  that  tJie  new  mo<Ic«  would  be  witMa 
the  soopG  of  the  power  to  make  war,  if  Ihcy  were  ap;>roi>riate  to 
the  end.  It  would,  indeed,  be  a  most  extraordinary  mode  of  in- 
terpretation of  the  Constitution,  to  giro  such  a  rostrictire  mean- 
ing to  its  powers  as  should  obstruct  their  fair  operation.  A  power 
being  given,  it  is  the  interest  of  tlie  nation  to  facilitate  its  exe- 
eution.  It  can  never  be  their  interest,  ami  cannot  be  presumed 
to  be  their  intention,  to  clog  and  embarrasa  its  execution  by 
withholiiing  the  moat  appmpriato  meomi.  There  can  bo  no  rea- 
sonable ground  for  preferring  that  construction  which  would 
render  the  operations  of  tho  gorcrnment  difficult,  hazardona,  and 
expensive;  or  for  Imputing  to  the  frumcrs  of  the  Constitution  a 
design  to  impede  the  exercise  of  its  jiuwera  by  withholding  a 
choice  of  means.* 

§  482.  In  the  practical  application  of  government,  then,  the 
public  functionaries  miwt  be  lelt  at  liberty  to  exercise  the  [wwors 
with  which  tho  people  by  the  Constitution  and  laws  luiro  intnuitcd 
tlK'HL  They  must  have  a  wide  di»cn>tion  as  to  (lie  choice  of 
muuus;  aud  the  only  limitation  upon  that  di»rrction  would  seem 
to  bo  that  the  moans  are  appropriate  to  the  cud.  And  this  must 
naturally  admit  of  considerable  latitude;  for  the  relation  between 
the  action  and  the  end  (as  has  been  jwitly  remarked)  is  not  al- 
ways so  direct  and  palpable  as  to  strike  the  eye  of  every  ob- 

>  UtiCaltoek  r.  HMyUad,  4  WIimU  R.  81«,  tas. 


CH.  v.] 


UULES  or  INTlUtFBKTATtOK. 


831 


Herv«i-.'  If  tlie  end  t>e  1(>gitima(e  snd  vilhin  tlie  scope  of  the 
Cnntititutioa,  all  tlio  meaiui  wliich  are  appropriate,  aud  wkich 
are  jilainlj  adapted  to  that  end,  and  which  are  not  probibit««l, 
may  bo  constitutionaJljr  entployvd  to  carry  it  into  offecL'  When, 
then,  it  ia  asked  who  is  to  judj^  of  the  nccciiBity  and  pro]>riety 
of  the  laws  to  bo  jiaasvd  for  cxocutinn  the  powers  of  the  Union, 
the  tnio  answer  is,  that  the  nutiouul  iForci-nmvnt,  like  every 
other,  aiiut  judint  in  tlic  first  instance  of  the  proper  exercise  of 
its  powers;  and  its  constitucuts  in  the  last.  If  the  means  are 
within  the  rcadi  of  the  power,  no  other  department  can  imjuirQ 
into  tlte  policy  or  com-enienoe  of  the  unc  of  them.  If  there  bo 
An  ezocM  by  overleaping  th«  just  botiudary  of  the  power,  the  ju- 
diciary may  generally  afToi-d  the  prn[>«r  relief;  and  in  the  last 
retort  the  people,  by  ndojiting  siieh  utoa^nrcs  to  redress  it  as  the 
exigency  may  sug^t  and  prudence  may  dictate' 

§  43-I.    XI.   And  this  leads  ua  to  remark,  in  the  next  place, 
that  in  the  interpi-ctation  of  the  Const  itut  ion  there  is  no  solid 
objection  to  implied  powers.*     Hod  the  fecultiea  of  man  been 
competent  to  tlje  framinp  of  a  system  of  ijovomment  wliii?h  would 
leave  nothing  to  implication,  it  cannot  be  doubted  that  the  effort 
would  have  been  made  by  tho  framers  of  our  Constitution.     The 
fact,  however,  ia  otherwise.     There  is  not  in  the  whole  of  that  i 
admirable  instrument  a  ^rant  of  powers  which  doce  not  draw  . 
after  it  others  not  expressed,  but  vitAl  to  their  exercise ;  not  aub< 
stantivo  and  inde]>eQdeut,  indeed,  but  auxiliary  and  subordi- ' 
nute.^    There  is  no  phrase  in  it,  whicli,  like  the  Articles  of 
Confederation,*  cxfludea   incidental    and   implied   powers,   and 
which  requires  that  everjthing  granted  shall  bo  expressly  and 
minutely  described.      Even  the  tenth  amendment,  whieli  was 

>  8m  tlia  murlu  «f  Hi.  Jutioe  Jakiuon  (>  dtUnriiig  Ik*  opinloa  tt  Aa  oonn  la 
Aailit*M  V.  Da>n,  t  Wltmt.  H.  204.  SM  ;  tTnltad  8uUi>  t.  TUbt.  2  Cnnch.  358. 

>  M<;<--<ilWk  «.  MurUnd,  *  WhMU  BL  31*.  400,  410,  421,  423 ;  Uaitod  SUh*  >. 
Fuher.  2  Cnook,  SGS. 

>  Th*  P«il*r«U«t,  Ka4.  33,  44  ;  HcOollocU  •.  MuyUnd.  4  What.  K.  3Ii!.  4«3. 

*  Ib  llio  dilouHBona  u  to  U»  ooiutitutioualltf  of  llw  lUnk  ol  Ih*  Vaiir^  State*,  i> 
Um  mUm4  of  PnAleiit  VMtiliigtai^  upon  tb«  ortgia*)  MUbUthaoil  of  Uw  Buik, 
Umn  wm  •  Imk*  naS"  of  ugnoMMt,  pro  et  tenira,  bi  RvpMl  to  iBpHn]  pomn.  Tho 
milsr  will  tnil  a  MiiDinMy  of  tbo  iMiMng  noiri  oa  Mth  Mds  la  th*  fifth  vohitta  of 
UknUl't  Ufo  of  Wulitii|[toi>,  Apji.  p,  S.  nut*  3.  Ac ;  4  Jdbnao'ii  Con*«p,  S38  ttt 
GSII I  ■■■•]  In  HainUton'i  Atgomfat  oo  Conotltutioiwlitf  of  Dank,  1  lUmilloa'*  Work*, 
lU  («  lU. 

•  Aflibnun  v.  Dnan,  3  yn>M.  »4.  2M.  •  Artkla  *. 


coxs-nTimos  op  the  ustted  stj^tes.        [boos  ni. 


framed  for  the  purpose  of  quieting  the  excessive  jealousies  which 
had  been  excited,  omits  the  word  "expresgljr"  (whidi  vaa  con- 
tained in  the  Articles  of  Confederation),  and  declares  only  that 
"the  powers  not  delegated  to  the  Cnitcd  States,  nor  prohibited 
by  it  to  tho  States,  arc  reserved  to  the  States  respectively,  or  to 
the  peopU";"  thus  tcaving  tho  questiun,  whether  th«  particular 
power  which  may  become  the  subject  of  conk-st  has  been  dele* 
gated  to  the  one  government,  or  prohibited  to  the  other,  to  de- 
peud  apoit  a  fair  construction  of  the  whole  in«tmmonC  The 
men  who  drew  and  adopted  this  amendment  had  experieuced  the 
embarrassments  resulting  from  the  insertion  of  this  word  in  the 
Articles  of  Confederati(«,  and  probably  omitted  it  to  avoid  those 
embarrasamenta.  A  oonstitntiou,  to  contain  an  accurate  detail 
of  all  the  subdivisions  of  which  its  gtcat  powers  will  admit,  and 
of  all  the  means  by  which  these  may  be  carried  into  execution, 
wontd  partake  of  the  prolixity  of  a  legal  code,  and  could  scarcely 
be  embraced  by  the  human  mind.  It  would  probably  never  be 
understood  by  the  public.  Its  nature,  therefore^  reqoifV«  that 
only  its  great  outlines  should  be  marked,  its  important  objects 
designed,  and  the  minor  ingredients  which  compose  those  objects 
be  deduced  from  the  nature  of  those  objects  themselves.  Hiat 
this  idea  was  entertained  by  the  framers  of  the  American  Con- 
stitution, is  not  only  to  be  iufi>rred  from  the  nature  of  the  in- 
strument, but  from  the  language.  Why,  else,  were  some  of  the 
limitations  found  in  the  ntalhaeotioa  of  the  first  articU  intro- 
duced I  It  is  al»o  in  MOM  degree  warranted,  by  their  baring 
omiued  to  use  say  lestrictiTO  tern  which  might  prevent  its 
reoeiviag  s  Mr  and  just  tutefpetatioa.  In  eonsiJertnit  this 
point,  we  shontd  never  forget  tiiat  it  is  a  constitotiflQ  wt  are 
expounding. ' 

§  4^  The  reaaoning  ot  the  Federalist  is  to  the  ssas  iflMt. 
Every  power  which  is  the  nwsas  of  carrying  into  ellfct  a  giten 
power  is  implied  from  the  very  nature  of  the  onginsi  grauL 
It  is  a  neeeassr;  and  nnavoldable  impltcatioa  from  the  act  o( 
coostitating  a  govenunettt  sad  vestiug  it  with  ortain  specified 
powefB.  What  is  a  power  but  the  ahiU^  or  iscnlty  vi  doing  a 
thing?  What  is  the  ability  to  dosAiOfebnt  die  power  ef  employ- 
jng  0»B  means  necessary  to  its  ezeevtiflB  1    What  is  a  le^slstiw 

■  hv  Mr.  ChW  Jwtaf  MwiMT.  i>  IbCaBaA  •.  MhvImL  t  V^mS.  L  Ut, 

>«siwMr,m. 


CH.  v.] 


RIJLGS  OP  IKTEttPlEETlTlOtf. 


S88 


^ 


power,  but  a  power  of  mftking  laws  ?  What  are  the  means  to 
execute  a  Icgislatite  power,  hiit  laws?'  No  axiom,  indeed,  ia 
more  clearly  efltahlished  in  law  or  in  n*n»on  than  that  where  the 
end  is  re^iuired,  the  means  are  atithorixed.  Whenever  a  general 
power  to  do  a  thing  in  given,  every  particular  power  neoesaary 
for  doing  it  is  included.  In  every  new  application  of  a  general 
power,  the  particular  powers  which  are  the  means  of  attaining 
the  object  of  the  gvnoral  power  must  always  neoeesarily  vary 
with  that  object,  and  be  often  properly  roried,  whilst  the  object 
remains  the  same.'  Even  under  tlic  confederation,  whore  tho 
dvk'^lion  uf  authority  whs  coiiriu<.-d  tu  expret*  powers,  the  Fed- 
cralist  remarks  that  it  would  be  caay  to  show  that  no  importaat 
power  delegated  by  tlie  Articles  of  Confederation  had  been,  or 
eoold  be,  executed  by  Congress,  without  recurring  more  or  les* 
to  the  doctrine  of  conatnictiou  or  imjitication.* 
/  §  485.  Xn.  Another  point,  in  r^^rd  to  the  tnterpretaiion  of 
'  the  Constitution,  rei'iuires  us  to  advert  to  the  rules  applicable  to 
caaca  of  concurrent  and  exclusive  powers.  Id  what  cases  are  the 
powers  given  to  the  general  goverument  exclusive,  and  in  what 
cases  may  the  States  maintain  a  concurreot  exercise?  Upon 
this  sabjcct  we  hare  an  elaborate  exposition  by  the  authors  of  the 
Federalist;*  and  as  it  involves  some  of  the  most  delicate  quea- 
tions  growing  out  of  the  Constitution,  and  those  in  which  a  con- 
flict with  (he  States  la  most  likely  to  arise,  we  cannot  do  better 
than  to  quote  the  reasoning 

f  486.  "An  entire  consolidation  of  tJ>e  States  into  one  com- 
plete national  sovereignty  would  imply  an  entire  subordinatitMi 
of  the  parts;  and  whatever  powers  might  remain  in  them  would 
be  altogether  defiendent  on  the  general  wilL  But  as  the  plan  of 
the  convention  aims  only  at  a  partial  union  or  comwUdatiun,  the 
Statu  governments  would  clearly  ii>tain  all  the  riglits  of  sover- 
eignty which  they  before  had,  and  which  were  not,  by  that  act, 
ezdimctli/  delegated  tu  the  United  Slates.  This  exclusive  dele- 
gation, or  rather  this  alienation  of  State  sovereignty,  would  only 
exist  in  three  cases;  where  the  Constitution  in  express  terras 
granted  an  exclusive  authority  to  the  Union;  where  it  granted, 
in  one  instance,  an  antbority  to  the  Union,  and  In  another  pro- 
hibited the  States  from  exorcising  the  like  authority ;  and  where 


■  Tin  Fedoralbt,  Xo.  S3. 

■  U.  No.  it. 


«  Id.  So.  ii. 

« Id.  No.  aa. 


884 


CONSTITDTION  OF  THE   URITED  STATES.  [BOOK  111. 


it  granted  an  anthoritj  to  t3ie  L'nioii,  to  which  a  aimilAr  authoritjr 
in  the  States  would  ho  n)«oluteIy  and  tntally  ctmtradictorif  and 
repHffnoHt.  I  U8«  thme  tcrma  to  diatinguish  this  luat  i-ase  froc 
another  vhich  might  appear  to  rcaombtc  it,  but  which  would, 
fact,  be  OHaentiallv  different:  I  moan,  where  the  cxercioc  of  oon* 
current  juriwlictitm  might  I>e  prtKhictivc  of  oc^iasional  interfer- ' 
encea  in  tho  p<fticg  of  any  branch  of  adminintratiim,  but  would  out 
imply  any  direct  contradiction  or  rept^ancy  in  point  of  coosti- 
tutioniil  authority.  Tbfiso  three  caaoti  of  excluflivc  jurisdiction  tn 
the  federal  frorernment  may  bo  oxempUficd  by  the  following  in* 
stances.  The  last  clause  but  one  in  the  eighth  section  of  tito  first 
Article  provides  expressly  that  Congress  shall  exercise  'luvVwstr* 
leffi»lation  '  u\xr  the  district  to  be  appropriated  as  the  scat  of  gov> 
ernment.  This  answers  to  the  first  case.  1^0  first  clause  of  the 
same  section  ompowors  Congress  '  to  lay  and  eolUet  t/ue»,  dutttt^ 
importi,  and  excitt*;*  and  tlic  second  clause  of  the  tenth  section^ 
of  the  same  article  declares  that  'mo  State  thaU,  witliout  the  con- 
sent of  Congress,  lag  any  imposta  or  dutiet  on  imports  or  export»f  i 
except  for  the  purpose  of  executing  its  inspection  laws. '  Hence 
would  result  an  exclusive  power  in  the  Union  to  lay  duties^  on  im* 
ports  and  exports,  with  the  particular  exception  mentioned,  fiat 
this  power  is  abridged  by  nnnther  clause  which  declares  that  no 
tax  or  duty  shall  Iw  laid  on  artieles  exiwrted  from  any  State; ' 
in  consequence  of  which  qualilication  it  now  only  extends  to  the 
dutiet  on  imports.  Tliis  answers  to  the  second  case.  ITie  thl 
will  be  found  in  that  clause  which  declares  that  Congress  sballl 
have  power  *  to  establish  an  uniform  rvU  of  nataraliiation 
throughout  the  tJnited  Statea.'  This  ranst  necessarily  be  excln- 
sive,  because,  if  each  Htate  had  power  to  prescribe  a  dlitinet 
rule,  there  could  be  no  uniform  rufc  "  Ute  oorrectnras  of  these 
rules  of  intepretation  baa  never  been  controverted,  and  they  bare 
boon  often  recognized  by  the  Sapremo  Court.' 

§  437.  The  first  two  rules  are  so  completely  self-evident  that 
every  attempt  to  illustrate  them  would  be  vain,  if  it  had  not  a 
tendency  to  perplex  and  confuse.  The  last  rule,  namely,  that 
which  declares  that  the  power  la  oxeluaive  in  the  national  gor- 
emment  where  an  authority  is  granted  to  the  Union,  to  which  a 

1  Sm  HotutMi  ».  Moon,  S  Wlwkt  &  1,  S3;  S4. 18  ;  O^lm  v.  GiblMni;  9  VnuAi 
R.  1.  IM,  Sidy  ttS.  OSS;  StUfd*  *.  Oownlnaliltia,  4  Vbeat.  B.  113,  1*^  IMf^ 
Ogdni  B.  8MiulN*k  11  VbMt.  1,  S7S,  SOT,  9m,  331,  SS&. 


CB.T.] 


BCLES  OP  ntTERPSBTATtOX. 


885 


similar  authorit;^  in  the  States  would  >»  abaolutflr  and  totally 
Coulrudictory  niid  repugnant,  is  that  alou«  which  mar  he  thought 
to  require  coniin«nt.  Thi«  rule  seems  in  its  ovm  nature  as  little 
SUBC«]>tib1e  of  doubt  as  the  others  in  reference  to  the  Constita- 
tion.  For,  since  the  Confttitution  has  declared  that  the  Constitu- 
tion and  laws  and  treaties  in  parsuance  of  it  ehall  be  the  supremi' 
law  of  the  land,  it  would  be  absurd  to  say  that  a  State  law  repug- 
nant to  it  might  have  concurrent  operation  and  validity,  and  es- 
pecially as  it  is  expressly  added,  **  anything  in  the  Constiltitiun 
or  laws  of  any  State  to  the  contrary  notn'ithstanding."  Tiic  re- 
pugnaucy,  then,  being  made  out,  it  follows  that  the  State  law  is 
Just  as  much  void  as  though  it  had  been  expressly  declared  to  be 
void,  or  the  power  in  Congress  had  been  expressly  declared  to  be 
exclusive.  Every  power  given  to  Congress  is  by  the  Constitution 
necessarily  supreme,  if,  from  its  nature,  or  from  tlie  worrls  of  the 
grant,  it  is  apparently  intended  to  be  exelusive ;  and  is  as  much  so 
as  if  the  Stales  were  espressly  forbidden  to  exercise  it,' 

§  4:18.  The  principal  diflicult>'  lies  not  so  mnch  in  the  rule,  as 
in  its  application  to  particnlsr  cases.  Here  the  field  for  discus- 
sion is  wide,  and  the  argument  upon  construction  is  susceptible 
of  great  modifications  and  of  ^^ry  various  force.  But  unless 
from  tJie  nature  of  the  power,  or  from  the  obvious  resulta  nf  its 
ojKTations,  a  repugnancy  must  exist,  bo  as  to  lead  to  a  necensary 
oonclusiou  that  the  power  was  intended  to  be  exclusive,  tlic  true 
rale  of  interpretation  is  that  the  iMWcr  is  merely  concurrent. 
Tliua,  for  instance,  an  affirmative  power  in  Con^'sft  to  lay  taxes 
is  not  necessarily  incompatible  with  a  like  power  in  the  .States. 
Both  may  exist  without  interference,  and  if  any  interference 
should  arise  in  a  {torticular  ease  the  question  of  snpreniacy  wo«i!d 
tnm,  not  upon  the  nature  of  the  power,  but  upon  supremacy  of 
right  in  the  exercise  of  the  power  in  that  cose.'  In  our  complex 
I  system,  presenting  the  rare  and  difficult  scheme  of  one  general 
igovemmont,  wh'ise  action  extends  over  the  whole,  bat  which 
^possesses  only  enumerated  powers,  and  of  numemns  State  gov- 
eninients,  whicli  retain  and  exercise  many  powers  not  delegated 
to  the  Union,  contests  respecting  power  most  arise.     Were  it 

>  Statgk  *.  CWwufmUiUl,  4  VWt  B.  Itt,  1»S,   l*S ;  Oiliboiu  «  Ogd«a,  0 
'WliMtB.  1,  lH,ft«. 

•  Tbs  PolcnlUt,  Ho.   SI ;  OiVboM  «.  Ogdtn,  0  VLnl.   K.  1,  IBS,  IM  to  109  i 
UcCuIl«cb  «.  UwyUad,  t  Wti«>t.  R.  SIS,  4U. 


886 


COSSTITCTIOJJ  OP  rne  tTNITED  STATES.  [BOOK  HI. 


cren  otherwise,  Uic  measures  taken  by  the  respective  governments 
to  execute  tlieir  acknowledged  powers  would  be  olten  of  the  s&me 
description,  and  mi^t  some  time  interfere.  Thia,  however,  docs 
not  prove  that  the  one  is  exercising,  or  has  a  right  to  exercise, 
Uio  powers  of  tho  other.' 

$  439.  And  this  leads  us  to  remark  that,  in  the  exercise  of 
comnirrt-nt  jwwcre,  if  there  be  a  coD6ict  between  the  laws  of  the 
Uiiiuii  and  the  tun's  of  the  i^tat4.-!i,  tbc  former  be  I  uj;  supreme,  the 
latter  must  of  course  yield.  The  possibility,  nay  the  probabili^, 
of  such  a  conflict  wm  foreseen  by  the  fatuners  of  the  Conatitotioo, 
and  was  accordingly  expressly  provided  for.  If  a  State  pass  a 
law  inconsistent  with  the  Constitution  of  the  United  States,  it  is 
a  mere  nullity.  If  it  pass  a  law  clearly  within  its  own  constitu- 
tional powers,  still  if  it  conflict  with  the  exercise  of  a  power  given 
to  Congress,  to  tbo  extent  trf  the  interfereuce  its  operation  is 
suspended;  (or  in  a  conflict  of  laws  that  which  is  supremo  must 
govern.  Therefore  it  has  o(t«u  been  adjudged  that  if  a  State 
law  is  in  conflict  with  a  treaty  or  an  act  of  Congtess,  it  becot&es 
ipto/acto  inoperative  to  the  extent  of  the  conflict' 

§  440.  From  this  great  rule,  that  the  Constitution  and  laws 
made  in  pursuance  tliercuf  are  supreme,  aud  they  control  the 
constitutions  and  laws  of  the  States,  and  cannot  bo  controlled  by 
tlieni,  — from  this,  which  may  be  deemed  an  axiom,  other  aux- 
iliary corollaries  may  be  deduced.  In  the  fir«t  place,  that-  if  a 
power  is  given  to  create  a  thing,  it  implies  a  power  to  preserve 
it  Secondly,  that  a  power  to  destroy,  if  wielded  by  a  different 
hand,  is  hostile  to  and  incompatible  with  this  power  to  create 
and  preserve.  Thirdly,  that  where  this  repugnAncy  exists,  the 
authority  which  is  supreme  must  control,  aud  not  yield  to  that 
over  which  it  is  supreme.*  Consequently,  the  Itiierior  power 
becomes  a  nullity.* 

I  Glbbnw  K  Ogim,  «  VbHt  B.  1,  Ml.  tb.  ChMetlkr  Kmt  bM  gim  Ob 
iriwle  «alj«)t  tl  «wtoir>  aoil  wuean—t  power  •  thote^k  umtaulott ;  ud  ih* 
hmII  wOl  be  fbind,^Mat  Mj  Majad  Is  U*  Uuami  OaaoMbria^  Ltenit  IS.  )  Ijmit, 
Oamm.  Ul  U  K9.  ti  w^L  yf^  S$l  la  tU. 

*  WuB  •.  UyltM.  S  lUL  l»g  ;  OiUnnt  •.  Ofdca,  S  VbML  B.  I.  Zl^  SU  :  Ke- 
OOhtk  >.  Muylud,  i  VhMt.  a  SIS.  4M,  OM.  US  to  IW;  a«artM  «L  Moon.  • 
VbwL  B.  1,  ai,  !!,<».  fil.  n,  S«  ;  Suigb  •.  CraniMltUd.  t  WIukL  K.  1.  IM^ 
IMi  OoUm  b.  Priaoe,!  Vuh.CC.  ft.  SIS,  mini  Tadmlut,  Sa.n;  Bm«s 
r.  H«f7h»d.  IS  WbML  R.  41S.  tS». 

>  MoC>llMlkK)lMTla4.UVWt.IL«<,  HI 

«  Scnili  «.  CMndMUiU,  «  Wbtf.  B.  1.  IM. 


CO.  T.] 


BDLES  OP  IKTEKPBETATION. 


837 


§  441.  But  a  question  of  a  still  more  delicate  nature  may  arise ; 
and  tliat  is,  how  fur  in  tlic  oxcrcis^  of  a  concurrent  power  the 
actual  lejrislation  of  Congifss  siipcrsodva  tlio  State  tc^istation, 
or  aus|)cnils  its  opcmtioii  over  tlic  Bubjeet<niatt«r.  Arc  the  State 
laws  iuoi>ernt)ve  only  to  the  extent  of  the  actual  conflict,  or  does 
Die  IcfrislalioQ  of  Congress  suspend  the  le^slatiro  power  of  thfl 
State  over  the  aubject-mattfr  f  To  such  an  inquiry,  probahly  no 
universal  answer  could  Iw  given.  It  may  depend  upon  the  na- 
ture of  the  power,  the  effect  of  the  actual  csorcise,  and  the  ex- 
tent of  tJie  8iil  I j«?t- matter. 

§  442.  This  may  perhaps  be  beet  illustrated  by  patting  a  case 
which  haa  been  roanoned  out  by  a  rery  learned  judge,  in  his  own 
words. '  "  Congreas  has  power,"  saya  he,  "to  provide  for  organiz- 
ing, arming,  and  disciplining  the  militia,  and  it  is  presumable 
that  the  framora  of  the  Constitntion  contemplated  a  full  exercise 
of  all  thcae  powers.  Nevertheless,  if  Congress  had  declined  to 
exercise  them,  it  was  competent  to  the  State  governments  to  pro- 
vide for  organizinjz,  arming,  and  disciplining  their  reapectiTe 
militia  In  such  manner  as  they  might  think  proper.  But  Ccm- 
grcsa  haa  provided  for  thcso  suhjecta  in  the  way  which  that  body 
must  have  supposed  th«  best  calculated  to  promote  the  general 
welfare  and  to  provide  (or  the  national  dcfenca  After  this,  can 
the  State  goremmenta  enter  upon  the  same  ground,  provide  for 
the  same  objects  aa  they  may  think  proper,  and  punish  in  their 
own  way  violations  of  the  laws  they  have  so  enacted  ?  The 
aflirmati\-e  of  this  question  is  asserted  by  counsel,  Ac,  who  con- 
tend (hat,  unless  such  State  laws  are  in  direct  contradiction  to 
thoflc  of  the  United  States,  they  are  not  repugnant  to  the  Consti- 
tntion of  the  Unit<^^  States.  From  this  doctrine  T  mu.tt,  for  one, 
be  permitted  to  dissent.  The  two  laws  may  not  Ije  in  such  abso- 
lute opposition  to  each  otiier  as  to  ren<Ier  the  one  incapable  (riT 
execution  without  violating  the  injunctions  of  the  other,  and  yet 
the  will  of  the  one  legislature  may  be  in  direct  collision  with 
that  of  the  otlier.  This  will  is  to  be  discovered,  aa  well  by 
what  the  legislature  haa  not  declared  aa  by  what  they  have  px- 
pressed.  Congress,  for  example,  have  declared  that  the  puniab- 
ment  for  disobedience  of  the  act  of  Congress  shall  be  a  certain 
fine.  If  that  pn>vided  by  the  State  legislature  for  the  same 
o£fonc«  be  a  similar  fine  with  the  addition  of  imprisonment  or 

>  Ur.  JimUm  WmUi^d,  Hoiutm  r.  Hoon^  S  WhrnX.  R.  1,  SI,  23. 
VOL.  t.— 33 


CONSTITUTION  OP  TOB  UKITED  STATES.  [BOOK  HI. 


death,  the  latt«r  law  would  not  prCTent  tb«  tornuir  from  being 
carried  into  execution,  and  may  bo  said,  thorcforo,  not  to  be  re- 
ptigiiant  to  it.  But  surely  the  will  of  Congrcsa  is  nwertheleM 
thwarted  and  opposed. " '  He  adds :  "  1  consider  it  a  novel  and 
oncoostitutioiuil  doctrine,  that  in  cases  where  the  State  goTera* 
nicuts  have  a  concurrent  power  of  legislation  with  the  national 
government,  they  may  le^alate  upon  any  subject  on  which  Con- 
gress baa  acted,  provided  the  two  laws  are  not  in  t«rms  or  in 
their  operation  contradictory  andrepugnant  to  each  other."' 

$  443.  Another  illustration  may  be  drawn  from  tlie  opinion  of 
the  court  in  another  highly  important  case.  One  question  was, 
vbetfaer  the  power  of  Congress  to  establish  unifonu  laws  on  the 
■object  of  bankruptcies  was  exclosive,  or  concurrent  with  the 
States.  *'lt  docs  not  appear,"  it  was  then  said,  "to  be  a  violent 
construction  of  the  Constitution,  and  is  certainly  a  convenient 
one,  to  consider  the  power  of  the  >jtates  as  existing  over  such 
cases  as  the  laws  of  the  Union  may  tut  reach.  lie  thia  as  it 
may,  the  power  of  Congress  may  be  exercised  or  declined  as  the 
wisdom  of  that  body  shall  decide.  If  in  the  opinion  of  Congress 
uniform  laws  concerning  bankruptcies  ought  not  to  bo  estab- 
lished, it  does  not  follow  that  partial  taws  may  not  exist,  or  that 
State  legislntioQ  on  the  subject  must  ci-ase.  It  is  not  the  mere 
existence  of  Ilic  power,  but  itit  exercise,  which  is  incompatible 
with  the  exercise  of  the  same  power  by  the  States.  It  is  not 
the  right  to  eatabliah  thc«c  uniform  laws,  but  their  actoal  estab- 
lishmcat,  which  is  inconsistent  with  the  partial  acts  of  the 
States.  If  Uio  right  of  the  Statm  to  pasa  a  bankrupt  law  is  not 
taken  away  by  the  n>ere  grant  of  that  power  to  Cougrcsa,  U  can- 
not be  extinguished.  It  can  only  be  suspended  by  the  eaaetmeot 
of  a  general  bankrupt  law.  The  repeal  of  that  law  cannot,  it  is 
true,  confer  the  power  on  the  States,  but  it  removes  a  disalrtllty 
to  its  cxerciso  which  was  created  by  the  act  of  CoogreBs."* 


1  ITbnt.  K.  P.SS. 

«  B  Vkal.  R.  p.  St.     8*»  abe  OaUn  r.  PrtaM;  S  Vm^.  C  C  B.  311.  tit.  ftc. 
•  Staifb  >.  CnwnlukUU.   4  WbMt.   R.  IS!,  IVS,  IM.     Sot  da  Gibbtws  >. 
'  Ofte,  t  Vhtu.  a  1, 1»T.  sir.  S5,  SM  i  Iliioa  k  Jttmi,  t  WkML  R.  »^  «, 
SIMM.    lUtofiniMi.  tlMth*p«<nrlapMhBki^kinbMt  «nJMlnt  ^ 

talMd  M  d  «BN  u  otifMlM  vpfalM :  ud  lb  «pteisa  ii  kBom  ts  W*«  bM  Hloptai 

'•yrt  li^  at  cUwt  «f  th*  Jajfftrf  tfc»lliyiwL  Camn.    -*--  tumi  m  lUA 

Ui.  iMiiM  WMhiagtoa'*  opWsa  >  ftmdti.  >m  U  Itaad  at  luft  is  tb  ^  il 


CH.  T.] 


BULGB  OP  IXTBBraLTA-nON. 


S89. 


It  i*  not  our  intention  to  CMument  on  thcac  casea,  but  to  offer 
them  «8  cxauipli>)i  of  reaaoning  in  &ivor  un<l  aguiiut  the  exclnaive 
l)on-cr  where  a  iKMitivc  rvpugnancy  cannot  be  predicated. 

§  444.  It  han  been  tiomctiinra  ar)med  th&t  whi.'n  s  power  is 
granted  to  CoiigrcMS  to  legislate  m  spc-cific  oajm-s  for  piirpmcfl 
growing  otit  of  the  Union,  the  aaliirul  conclusion  is  that  the 
power  is  rlesig^te*!  to  h«  excliwire;  llukt  the  power  is  to  bo  ex- 
ercised for  Die  gond  of  the  whole  by  the  will  of  the  whole,  and 
comtintently  with  the  interests  of  the  whole;  and  that  these  ob- 
ject* can  nowhere  lie  so  ele«rlj-  8«en  or  so  thorotiglily  wi-iphcd 
aa  in  Ctmgn^sH,  where  the  whole  nation  is  represented.  But  tlio 
argument  proves  too  much,  and,  pursued  to  its  full  extent,  it 
would  establiiih  that  all  the  powers  granted  to  OonBTots  are  ex- 
clusive, unless  where  concurrent  authority  is  expressly  n^serred 
to  tJic  States.'  For  instance,  upon  this  reasoning  the  ]wwer  of 
taxation  in  OongrL-ss  would  annul  the  whole  power  of  taxation  of 
the  States,  and  thus  oi>(;rate  a  virtual  di»)u>lution  of  their  sorer- 
cignty.     Such  a  protonaion  haa  been  cunstantly  diselaimed. 

§  445.  On  the  other  hatul,  it  has  been  maintained  with  great 
pertinacity  that  the  i^tatcs  poaacss  concurrent  authority  with 
Congress  in  all  cases  where  the  power  is  not  expressly  declared 
to  bo  exclusive,  or  cxpreasly  prohibited  to  the  States;  and  if,  in 
iite  exercise  of  a  eoucurrent  power,  a  conflict  arisrs,  there  is  no 
reaaon  why  each  should  not  be  deemed  c<)ually  rightful^  Bat  it 
is  plain  that  this  reasoning  goes  to  the  direct  overthrow  of  the 
princi|iIo  of  supremacy,  and,  if  admitted,  it  would  enable  the 
suhnniinnte  sovereignty  to  annul  the  powers  of  the  su|>(.Tior. 
There  is  a  plain  repugnance  in  conferring  on  one  government  a 
power  to  control  the  constitutional  meaBuren  of  imolbL-r,  which 
other,  with  respect  to  these  very  mea»u^?t^  is  declared  to  be  su- 
preme over  that  which  exerts  the  control.*  For  instAnce,  tlio 
States  have  acknowledgedly  a  concurrent  power  of  taxation.  But 
it  is  wholly  inadmissible  to  allow  that  jwwor  to  be  exerted  orer 
any  instrument  employed  by  Ute  general  government  to  vsccuto 


OoIiIm  *■  PriDcv,  S  Wuli.  C  C.  R.  313,  $33;  Ad.     Sea  alao  Ogdm  •-.  StDadoq,  13 
VTbMl.  R.  SIS,  261.  2U,  «nd  Gibbon*  v.  Ogim,  9  Wlital.  B.  1,  20»^  B34,  238. 
<  ilouaMti  *.  Moon.  B  Vhtit.  R-  1,  49,  SB.  M. 

*  Sn  Oibbonii  *.  Otd*m  9  WbMt.  a  1,  1»1,  no ;  UtOnlkek  «l  Harrland,  4 
Vhmt.  R.  SI6.  GZ7. 

•  UcCutlovb  V,  itttjhad,  i  WlMst.  E  Sl«,  ill. 


340 


CONSTITtmOK  OF  THE  tTKirKD  STATES.  [BOOK  m. 


its  powcru,  (or  such  a  power  to  tni  iiiTolTce  a  power  to  dcstroj, 
aod  this  pow<>r  to  destroj'  may  defeat  and  render  uselem  tbe 
power  to  croftte.'  Thus  a  8t»te  may  tax  the  nmil,  the  mint, 
patent  rights,  cuatom-liousc  papers,  or  judicial  process  of  the 
oourtd  of  tlio  United  Htutiti.*  And  yet  there  is  no  clnu»e  in 
the  Constitution  which  prohibits  the  States  frotn  exercising  tbe 
powi^r,  nor  any  exclusive  grant  to  the  United  Htates.  The  ap- 
parent ntpugnauey  crcat<.'«,  by  implication,  the  prohibition.  So 
CoDgress,  by  the  Constitution,'  poeseM  power  to  provide  for  gOT- 
emintr  siich  part  of  the  militia  as  may  be  empliivfd  in  the  service 
of  tlie  Uiiilvd  Stat*"*.  Yet  it  is  not  said  that  snch  power  of  gar- 
cmmeat  is  exclusive.  But  it  results  from  the  nature  of  the 
power.  No  pentnn  would  oontond  that  a  State  militia,  while  in 
the  actual  service  and  employment  of  the  ITniton  States,  might 
yet  be  at  the  siune  time  governed  and  control  led.Jfr  the  laws  of 
the  State.  The  very  nature  of  military  operations  would  in  endi 
case  require  unity  of  command  and  direction.  And  the  argu- 
ment from  inconrenience  would  be  abeolntely  irresiatihie  to  ea- 
tablish  an  implied  prohibition.*  On  the  other  hand.  Congress 
have  power  to  provide  for  organizing,  arminf^  and  disviptining 
the  militia;  bnt  if  Congress  should  make  no  such  proriHion, 
there  scema  no  reason  why  the  States  may  not  organixe,  arm, 
and  discipline  tlictr  own  miliUa.  No  ncccssarr  incompatibility 
wonld  exist  in  tlic  nature  of  tbe  power,  though,  when  cseroised 
by  Coninvss,  the  authority  of  the  8tat««  most  neeocnrlly  yield. 
And  here  the  anrumcnt  frcnn  inoooTenieaee  vonld  be  retr  pen> 
saasire  the  other  way.  For  the  power  to  organize,  arm,  and  dis- 
cipline tlie  militia,  in  the  absence  of  ooE^reasional  Icgtalation, 
would  seem  indiiipenflable  for  the  dttfenoe  and  security  of  tbe 
States.*  Again,  Congiesa  bare  power  to  call  forth  the  militia  to 
execute  tbe  laws  of  tbe  Union,  to  suppress  insarrcetiona,  and 
rcfiel  inTaaiooa.  But  there  does  not  seem  any  ineompatibiHtT  in 
the  Stales  calliog  oak  tb^  own  militia  as  aoxiliailea  for  tbe 
'BUM  purpose.* 

§  44&  In  oonatderini^  then,  this  snbject,  it  would  be  imprac* 
tieable  to  lay  down  any  nniveml  rale  as  to  what  powers  are,  hf 
impUcatioB,  cxdnsiTe  in  the  general  goTenuneat,  or  oattcarrent 

'  14.  Ut 


*  Tt   II-  II      "       ■  "-^—  -    •    " 


•U.K 


CH.  T.] 


RULES  OP  INTESPBETATIOH. 


841 


in  Uio  States;  and  in  relation  to  the  UUer,  what  rcetrictiona 
eithvr  on  tbc  puwur  itouU,  or  un  the  actual  uxorcitx;  of  tho  power, 
ome  by  iiuplioatioa.  lu  some  cwca,  as  w«  have  aevn,  there  maj 
exist  a  coucurixtut  power,  and  yet  reutriotionH  npuu  it  must  exist 
lU  regard  to  uhjuctii.  Id  othur  cuimm  tJio  actual  operations  of  the 
power  only  am  suspended  or  controlled  when  there  arises  a  con- 
flict with  the  actual  upcmtiutis  uf  the  Cnion.  Every  ((ut-stiou  of 
this  sort  must  \k  dt-cided  hy  itself  upon  its  own  circiunstances 
and  roasona.  Because  the  power  to  re)^lat«  commerce,  from  its 
nature  and  objec-ts,  is  exclusive,  it  does  not  follow  that  the  ponvr 
to  pass  bankrupt  laws  also  is  exclusive.' 

§  447.  Wc  may,  however,  lay  down  some  few  rules  dcduciblo 
from  what  has  bvuu  already  said,  in  rcspv-et  to  cases  of  implied 
probihitiuns  ujiun  the  existence  or  oxurcisc  of  powers  by  the 
States,  as  f^idcs  to  aid  our  iuqiiiriea.  1.  Wherever  the  power 
given  to  the  general  govemincnt  nKjuirca  that,  to  be  cfTicacious 
and  adequate  to  its  end,  it  should  be  exclusive,  there  arises  a 
just  implication  for  deeming  it  exclusive.  Whether  exercised  or 
not  In  such  a  cuso  makes  no  difference.  2.  Wherever  the  power 
in  its  own  nature  is  not  incompatible  with  a  concurrent  power  in 
the  States,  cither  in  its  nature  or  exercise,  there  the  power  be- 
longs to  the  States.  &,  Bat  in  such  a  case  the  concurrency  of 
the  power  may  admit  of  restrictions  or  qualiGeations  in  its  na- 
ture or  excrciiM.-.  In  its  nature,  wlteu  it  is  capable  frum  its  gen* 
eral  charactur  of  being  applied  to  objects  or  purposes  which  would 
control,  defeat,  or  divlroy  the  powers  of  the  general  governrnt^nt 
In  its  exercise,  when  there  arises  a  conflict  in  the  actual  laws 
and  regulations  made  in  pursuance  of  the  power  by  the  general 
and  State  governments.  In  the  former  case  there  ia  a  qualifica- 
tion ingrafted  upon  the  generality  of  the  [mwer,  excluding  its  ap- 
plication to  such  otijecta  and  porposca.  In  the  latter  there  is 
(at  leaat  generally)  a  qualification  not  upon  the  power  itaolf,  but 
only  iifmu  its  exercise,  to  the  extent  of  the  actual  confliirt  in  the 
operations  of  each.  4.  In  cases  of  implied  iimitations  or  pro- 
hibitioDs  of  power,  it  is  not  sufficient  to  show  a  possible  or  po- 
tential inconvenience.  There  must  be  a  plain  incompatibility,  a 
direct  repugnancy,  or  an  extreme  practical  inconvenience  loading 
irresistibly  to  the  same  eooclusioo.     5.    If  such  incompatibility, 

t  Slorgu  r.  Cro-niiiiUdd,  4  ViMtt.  13S,  IM^  »'.  ICB  ;  Qibboda  r.  Ogin,  » 

iFbML  R.  1.  i»a,  ift7,  aos. 


342 


COXSTITUnON  OP  THE  DXITKD  STATES.  [BOOK  ID. 


repugn&ncy,  or  extreme  inccmvenieiKM  would  rcsnlt,  it  \$  no 
answer,  that  m  the  actual  excrciito  ut  tlic  powvr  ouch  party  may, 
if  it  chooBVS,  avoid  a  poititivc  interference  with  tlic  other.  The 
objoction  \ic*  to  the  power  itself,  and  not  to  the  exercise  of  it 
If  it  cxiet,  it  may  bo  applied  to  the  extent  of  controlling,  defeat- 
ing or  destroying  the  other.  It  can  never  1>e  pr(!8»n»>d  that  the 
fromers  of  the  Constitution,  declared  to  be  aupremo,  could  intend 
to  put  it»  power*  at  hazai-d  upon  the  good  wialiea  or  good  inten- 
tions or  discretion  of  the  States  in  the  excrcitie  of  their  acknowl- 
edged powers.  6.  Where  no  such  repugnancy,  incompatibility, 
or  extreme  inconvenience  would  result,  th«n  the  power  in  the 
States  is  restrained,  not  in  its  nature,  but  in  its  operations,  and 
then  only  to  the  extent  of  the  actual  interference.  In  fact,  it  ia 
obTious  that  the  same  means  may  often  be  applied  to  carry  into 
operation  different  powers.  And  a  State  may  uae  the  same 
means  to  effectuate  an  acknowledged  power  in  itAplf  which 
Congress  may  apply  for  another  purpose  in  the  acknimlcdgod 
exercise  of  a  very  different  power.  Congress  may  make  that  a 
regulation  of  commerce  which  a  State  may  employ  as  a  guard 
for  its  internal  policy,  or  to  preserve  tJie  public  health  or  peace, 
or  to  promote  its  ovm  peculiar  interests.'  lliese  rules  seem 
clearly  dcduciblu  from  the  nature  of  the  instrument,  and  they  are 
confirmed  by  the  positive  injunctions  of  the  tenth  amendment  of 
the  ConstttutiiHi. 

§  448.  XIIL  Another  rule  of  interpretation  deserves  consid- 
eration in  regard  to  the  Constitution.  There  are  certain  maxims 
which  have  found  their  way  not  only  into  judicial  diseussions, 
but  into  the  business  of  common  life,  as  founded  in  cummon- 
sense  and  common  convenience.  Thus  it  is  often  said  that  in  an 
instrument  a  specilication  of  particulars  is  au  exclusion  of  gen- 
erals, or  the  expression  of  one  tliinj;  is  the  exclusion  of  another. 
Lord  Bacon's  remark,  **  that  as  excejition  strengthens  the  foroe  o£ 
a  law  in  cases  not  excepted,  to  cntuneration  weakens  it  in  cases 
not  enomerated,"  baa  been  perpetually  referred  to  as  a  fine  illus- 
tration. These  maxims,  rightly  understood  and  rightly  applied, 
nndonbtcdly  furnish  safe  guides  to  assist  na  in  the  task  of  expo- 
sition.  But  they  are  snsceptible  of  being  applied,  and  indeed 
sro  often  ingeniously  applied,  to  the  subreraioo  of  the  text  and 
the  objects  of  the  instrument.     Tlius  it  has  been  suggested  that 

1  Sae  GibtaH  *.  O^Im,  S  Wk^  K.  M;  SIO: 


en.  v.] 


BDLSa  or  IMTEaPSETATIOir. 


M8 


an  affirmative  provision  in  a  particular  case  escladea  the  exist- 
ence of  the  like  proviaiou  in  every  other  caae,  and  a  n«gaHTe  pro- 
rlsion  iu  A  particular  caau  udmits  the  existence  of  the  same 
thing  in  every  other  caae.'  Both  of  thetM*  dt'dnctiooa  are,  or 
rather  niay  be,  unfounded  in  solid  reaauninf;.'  Thus  it  was  ob- 
jected to  the  Constitution  that,  hariDg  provided  for  the  trial  by 
jury  in  criminnl  cages,  there  was  an  implied  excluaion  of  it  in 
civil  cases.  As  if  there  was  not  an  essential  difference  between 
silence  and  abolition,  between  a  positive  adoption  of  it  in  one 
clans  of  caHCB  and  a  discretionary  right  (it  being  clearly  within 
the  ivach  of  the  judicial  poweni  confided  to  the  Union)  to  adopt 
or  reject  it  in  all  or  any  other  cases.'  One  might  with  jiiat  as 
^nrh  propriety  hold  that  becaiiHC  Congress  has  power  "  to  declare 
war,"  but  no  power  is  expreasty  given  to  make  peace,  the  latter 
is  excluded;  or  that,  becauae  it  is  declared  tliat  "no  bill  of  at* 
tainder  or  ex  pMtfarto  kw  shall  be  passed  "  by  Congress,  there- 
fore Congress  posseHS  in  all  other  cases  the  right  to  pass  any 
laws.  The  truth  is,  that,  in  order  to  ascertain  bow  far  an  aflirm- 
ativo  or  negative  provision  excludes  or  implies  others,  we  must 
look  to  the  nature  of  the  provision,  the  Buhjcct-raatter,  the  ob- 
jects, and  the  scope  of  the  instrument.  These,  and  these  only, 
can  properly  determine  the  rule  of  constnietion.  There  can  bo 
no  doubt  that  an  affirmative  grant  of  powers  in  many  cases  will 
imply  an  exclusion  of  all  others.  As,  for  instance,  the  Cod- 
stitution  declares  that  the  powers  of  Congress  shall  extend  to 
certain  enumerated  cases.  This  specitication  of  particulars 
evidently  excludes  all  pretensions  to  a  general  Icgislatire  au- 
thority. Why  ?  Because  an  affirmative  grant  of  special  powers 
would  be  absurd,  as  well  as  uaclcaa,  if  a  general  authority  were 
intended.*  In  rolatiun,  then,  to  such  a  subject  as  a  constitution, 
the  natural  and  obviouii  sense  of  its  provisions,  apart  from  any 
technical  or  artificial  rules,  is  the  tnie  criterion  of  coustrtiction.' 
§449.  XIV.  AnotJier  nile  of  interpretation  of  Ihr  Constitu- 
tion suggested  hy  the  foregoing  ia,  that  the  natural  import  of  a 
single  clause  is  not  to  be  narrowed  so  as  to  exclude  implied 
powers  resulting  from  its  character,  simply  because  there  u  an- 

>  »M  th»  TeiefiUt,  tfn*.  S3,  U. 

*  Colinia  t.  Vlt)ctiit^  a  Wbrat.  R.  396  to  iOl. 
■  tin  P*<d(^i»t,  No.  6a. 

*  Tlifl  F«l«niUtl.  N'o.  M.     See  VatUt,  B.  S,  <h.  17,  1  Ml. 

*  The  F<d«nlwt,  No.  8). 


S44 


CONSTITUTION  OF  THE   UNITED  ilTl-m.  [»00C  ttU 


other  oluuse  which  entunerateii  certain  powcni  which  might  otbcr- 
vieo  be  deemed  implied  powers  within  ita  acope;  for  in  such 
caaes  we  are  out,  as  a  matter  of  course,  to  assume  that  tlto 
affirmative  spvoificatiuu  excludes  all  other  implicatiuns.  This 
rule  has  been  put  in  a  clear  and  just  li|^t  hy  one  of  our  most 
distinguishud  stat^smuu,  imd  liis  illuntrotiua  will  t>u  more  aatis* 
factory,  perhaps,  thuu  auy  other  which  can  be  offered,  "llie 
Constitution,"  says  he,  "vests  in  Congress  expressly  the  power 
to  lay  and  collect  taxes,  dutiea,  imposts,  and  excises,  and  the 
power  (0  rogulat«  trade.  Tliat  the  former  power,  if  not  partic- 
ularly expressed,  would  have  been  included  in  the  latter  aa  one 
of  the  objects  of  a  general  power  to  n^^late  trade,  is  not  neces- 
sarily impugned  by  its  being  so  expressed.  Examples  of  this 
sort  cannot  sometimes  be  easily  avoided,  and  are  to  he  seen 
elsewhere  in  the  Constitution.  Thus  the  power '  to  define  and 
p«iuish  offences  against  the  law  of  nations  *  includes  the  power, 
afterwards  partir^ularly  expressed,  ^to  make  rules  concerning 
captures,'  Ac,  from  offending  neutrals.  80,  also,  a  power  'to 
coin  money  *  would  doubtless  include  that  of  '  reflating  its 
value,'  bad  not  the  latter  power  been  expressly  inserted.  The 
term  taxe*,  if  standing  alone,  would  certainly  hare  included 
'duties,  imposts,  and  excises.'  In  another  clause  it  is  said,  'no 
tax  or  duty  sliall  be  laid  on  exports,'  ^tc  Here  the  two  terms 
are  used  as  synonymous.  And  in  another  clause,  where  it  is 
said  'no  State  shall  lay  any  imposts  or  duties,*  &c,  the  terms 
impo^  and  duties  arv  syuuuymuus.  Pleoausms.  tautologies,  and 
the  promiscuuds  use  of  terms  and  phr»so«,  differing  in  their 
shades  of  meaning  (always  to  be  expounded  with  reference  to 
the  ooat«xt,  and  under  the  control  of  tlie  general  character  and 
manifest  scope  of  the  instrumont  in  which  they  are  found),  are 
to  lie  aseriticd,  sometimes  to  the  purpose  of  greater  cautioa,  some- 
times to  the  imperfections  of  langua^  and  sometimes  to  the 
imperfection  of  man  himself.  In  this  view  of  the  subject  it  was 
quite  natural,  however  ocrtaioly  the  power  to  ri.-},n]lnte  trade 
might  include  a  power  to  impose  duties  on  it,  not  to  omit  it,  in 
a  clause  enimierating  the  sereral  modes  of  revenue  authorized  by 
the  Constitutiiin.  In  few  cases  could  the  [rule]  «x  m^ori 
cautda  occur  with  more  claim  to  respect"' 
§  450.    We  may  close  this  view  of  some  of  the  more  important 

>  Ur.  lUdken'*  Letter  to  lb.  CabcU.  IStk  StptanUr,  !»». 


CH.  V.J 


BOLES  OP  IKTERPRCTATIOK. 


845 


rule*  to  be  ciuployod  in  the  ioterpretation  of  the  Constitution  bjr 
adverting  to  a  few  belonging  to  mere  verbal  criticitm,  which  are 
indeed  but  eoroUaries  from  what  ha«  been  said,  and  have  been 
already  alluded  to,  but  which,  at  the  fianie  tinto,  it  majr  bo  of 
Bome  use  agnin  dJHtinctlf  to  enunciate. 

§  451.  XV,  In  the  first  placi:,  then,  every  word  employed  in 
the  Cunatitution  in  to  be  ctpoundcd  in  ita  plain,  obvious,  and 
common  senso,  unless  the  context  furniahea  some  ground  to 
contrul,  qualify,  or  enlarge  it  Constitutions  are  not  designed 
for  metuphysicul  or  logical  subtleties,  for  niceties  of  expression, 
for  critical  propriety,  (or  elaborate  shades  of  meaning  or  for  tlio 
exercise  of  philosophical  ucutcness  or  judicial  research.  They 
arc  ioMtrunicnts  of  a  practical  nature,  founded  ou  the  common 
bnaiooas  of  human  lifu,  adapted  to  common  wantv,  dutiigncd  for 
ooinmon  use,  and  fitted  for  common  imdoretandlngB.  The  pvoplo 
make  them,  the  people  adopt  them,  the  people  mu«t  bo  BuppoHcd 
to  l«ad  them,  with  the  help  of  common-sense,  and  cannot  be 
presumed  to  admit  in  them  any  nwoodite  meaning  or  any  extra- 
ordinary gloss. 

§  462.  XVI.  But,  in  the  next  place,  words  from  the  necessary 
imperfection  of  all  human  language  acquire  different  shades  o( 
meaning,  cjich  of  which  is  equally  appropriate  aud  equally  legit- 
imatv ;  each  of  which  rwcdcs  in  u  wider  or  narrower  degree  from 
the  others,  according  to  circumstances;  and  each  of  which  r«* 
cei\'es  from  its  gcucnil  use  some  indelinitcness  and  obscurity  as 
to  its  exact  boundary  and  extent'  We  are,  indeed,  often  driven 
to  multiply  oommentaries  from  tho  vagueness  <d  words  in  them- 
aelves,  and  p<^'rhap8  still  more  often  from  the  different  manner 
in  which  different  minds  are  accustomed  to  employ  them.  They 
expand  or  contract,  not  only  from  the  oonrcntional  modifications 
introduced  by  tho  changes  of  society,  but  also  from  the  more 
loose  or  more  exact  uses  to  which  men  of  different  talents,  ac- 
quirements, and  tastes  from  choice  or  necessity  apply  them.  No 
person  can  fail  to  remark  the  gradual  deflections  in  tlie  meaning 
of  words  from  one  age  to  another;  and  so  constantly  is  this  pro- 
cess going  on  tiiat  the  daily  language  of  life  in  one  generation 
sometimes  requires  the  aid  of  a  glosaary  in  anotlier.  It  has 
been  justly  remarked,'  that  no  lamnia^'  is  so  copious  as  to  sup- 
ply words  and  pliroses  (or  every  complex  idea,  or  so  correct  aa 

>  8m  VatUl.  B.  3.  di,  17,  H  SCI,  3M.  *  TIm  FadMaliM,  Ko.  S7. 


846 


coNsrmmoK  op  the  united  states.        [booeiil 


not  to  include  0)0117  eqnirocall;r  denoting  different  ideas.  Hence 
it  must  liappvn  tbut  however  accurately  olijecta  may  he  discHmi- 
natud  in  thvniMlvcs,  and  however  accurately  the  discrimJnatiuo 
may  be  coiiBidon!d,  the  definition  of  thom  may  be  rendered  ioac- 
curate  by  th«  inaccuracy  uf  the  terms  in  which  it  is  delivered. 
We  must  resort  then  to  the  contest,  and  «h»po  the  particular 
meaning  so  as  to  make  it  fit  that  uf  the  connecting  words  and 
agree  with  tlie  subjoct-niattcr. 

$453.  XVII.  lu  the  next  place,  where  technical  words  are 
luect,  the  technical  meaning  is  to  be  applied  to  them,  unless  it  ^ 
is  repollfd  by  the  context'  Bat  the  Ram«  word  oft«n  pouaoMW  ' 
a  technical  and  a  common  sense.  In  such  a  case  the  latter  is  to 
be  preferred,  unlms  some  attendant  circumstance  |>oiuta  clearly 
to  the  former.  No  one  would  doubt,  when  the  Constitution  has 
declared  that  "the  privilege  of  the  writ  of  habea»  corpnt  shall 
not  be  suspended  unless"  under  peculiar  circunuitancoa,  that  it 
referred,  not  to  every  sort  of  writ  which  has  atijuirt'd  that  name;, 
bat  to  that  which  has  been  emphatically  so  called,  cm  account 
of  its  remedial  power  to  free  a  party  from  arbitrary  impriaoo* 
mcnt'  So,  again,  when  it  declares  that  in  suite  at  wmmon  Utm^ 
Ac,  the  right  of  trial  by  jury  shsll  be  preserved,  though  the 
phrase  "common  law"  admits  of  different  meaningR,  no  one  can 
doubt  that  it  is  used  in  a  technical  sense.  When,  again,  it  de- 
clares that  Congn^s  shall  have  power  to  provide  a  navy,  we  read- 
ily comprehend  that  authority  is  given  to  construct,  prepare,  or 
in  any  other  manner  to  obtain  a  naty.  But  when  Congress  is 
farther  authorized  to  provide  fur  calling  forth  the  militia,  wo 
perceive  at  tmce  that  the  word  "provide"  Is  nsod  fn  a  some- 
what different  sense. 

§  4^.  XVIII.  And  tliis  leads  ns  to  remark,  in  the  next 
place,  that  it  is  by  no  means  a  correct  rule  of  interpretation  to 
conatTue  the  same  word  in  the  same  sense  wherever  it  occurs  in 
the  same  instruni^'nt  It  does  not  follow,  either  logically  or 
grammatically,  that  because  a  word  is  found  in  one  connection 
in  the  Constitution  with  a  definite  scnsc^  therefore  the  same, 
sense  is  (o  be  adoptvd  in  every  other  connection  in  which  it  00- ' 
core.'    Tliis  would  bo  to  suppose  that  the  framers  weigbod  only 

1  Sn  Tattal,  &  1,  «k.  17,  H  K^  277. 

*  Ei  iwt>  Bollmu  a  flwutvoot,  |  Oaacb.  Ji. 

•  TMtet,  B.  8,  ch.  17.  S  SBl. 


CH.  v.] 


BOLES  or  INTEBPRETATIOK. 


847 


tlic  force  of  einglo  words,  as  philolo^sts  or  critics,  and  cot  whole 
clAti«ett  aud  objects,  as  atHtc&moa  and  practical  n-afiuiicre.  And 
yet  nothiii)F  has  hwttt  more  common  tlian  to  mibjevt  the  Constitu- 
tion to  thi8  nnrrow  nnd  miHchicvuuH  criticisin.  Men  of  ingCD- 
ioug  and  Jriiilitl«  miiitU,  who  Aock  fur  Kj-iumctry  aihI  harmony  in 
language,  having  found  iu  tlie  Constitution  a  word  used  in  some 
senae  whicli  falU  in  with  their  favorite  theory  of  inter|ireting  it> 
hare  made  Uiat  the  standard  by  which  to  measure  its  use  in  every 
other  part  of  the  inetruineat  They  have  thus  stretched  it,  as  it 
were,  on  the  bed  of  I*rocni8te»,  lopping  off  its  meaning  when 
it  seemed  too  large  for  their  puri>osefi,  and  extending  it  when  it 
seemed  too  abort.  They  have  thus  distorted  it  to  the  rnodt  unnat- 
ural shapes,  and  crippled  where  they  liave  soii^tonly  to  adjust 
its  proportions  according  to  their  own  opinions.  It  was  very 
justly  observed  by  Mr.  Chief  Justice  Marshall,  in  The  Cherokee 
Nation  v.  The  State  of  Georgia,'  that  "it  has  been  said  that  the 
same  words  have  not  neceasarity  tlie  same  meaning  attached  to 
them  when  found  in  different  parts  of  the  same  instrument 
Their  meaning  is  controlled  by  the  context.  This  is  imdoubtedly 
true.  In  common  language  the  same  word  has  various  meanings, 
and  the  peculiar  sense  in  which  it  is  used  in  any  sentence  is  to 
be  determined  by  the  context"  A  very  easy  example  (A  this 
sort  will  be  found  in  the  use  of  the  word  "establish,"  which  is 
found  in  various  places  in  the  Constitution.  Thus,  in  the  pre- 
amble, one  object  of  the  Constitution  is  avowed  to  be  "  to  estab- 
lish justice,"  which  secnis  here  to  mean  to  settle  firmly,  to  fix 
iraaltorably,  or  rather,  pt.Tha|)s,  as  justice,  abstractly  considered, 
must  be  considered  as  forever  fixed  and  unalterable,  to  dispeoM 
or  adrainistur  justice.  Agoin,  the  Constitution  declares  that 
Congress  shall  have  power  "to  establish  an  uniform  niln  of  nat- 
uralization and  uniform  laws  on  the  subject  of  bankruptcies," 
where  it  is  manifestly  n.sed  as  equivalent  to  make,  or  form,  and 
not  to  fix  or  settle  unalterably  and  forever.  Again,  "  Congress 
shall  have  power  to  establish  post-ofSccs  and  potit-roada,"  where 
the  appropriate  sense  would  seem  to  be  to  create,  to  found,  and 
to  regulate,  not  so  much  with  a  view  to  permanence  of  form  as 
to  convenience  of  action.  Again,  it  is  declared  that  "Congresa 
shall  make  no  law  respecting  an  establishment  of  religion," 
which  seems  to  prohibit  any  laws  which  shall  recognize,  found, 
>  S  rmti'f  Rtpu  1,  IS; 


348 


CnKSTlTtlTIOH  or  THE  OKITGD  STATtS.  [bOOK  m. 


confirm,  or  patroiiixe  aay  particular  religion,  or  form  of  religion, 
wh4!tlicr  pcrmojient  or  temporary,  whether  ttlrcady  existing  or  to 
ari)u>  in  future.  In  tbis  cUu»e,  establiahment  seoms  equivalent 
in  meaning  to  dettlement,  recognition,  or  support  And  again, 
in  the  preamble,  it  ts  luiid,  "We  the  people,  &c,  do  ordain 
and  establish  this  Constitution,"  £c,  where  the  moat  appropri- 
ate seneo  seonu  to  be  to  crcatv,  to  ratify,  and  to  coulirm.  So  the 
word  "  State  "  will  .bu  found  luted  in  tiie  Constitution  in  all  tbo 
ToriouB  senses  to  which  we  have  beforu  alluded.  It  soraetimea 
mcaiui  the  iH.-pjinitc  iioctioiut  of  territory  occupied  by  Uic  political  i 
societies  within  oach;  sometimes  the  iioHicular  governments  «•- < 
tablishcd  by  these  societies;  sometimes  these  societies  as  organ* 
ised  into  Uieiio  particular  governments;  and,  lastly,  sometimes 
Uie  people  composing  these  political  societies  in  their  highest 
SOveroigu  capacity.^ 

§  ia5.  XIX.  But  the  most  important  rule  in  cases  of  this  na- 
ture il^  Uiat  a  constitution  of  guvorumeul  does  not,  and  cunnot, 
from  its  nature,  depend  in  any  great  degree  upon  mere  verbal 
criticism,  or  upon  the  import  of  single  words.  Such  criticism 
may  not  be  wholly  without  me;  it  may  sometimes  illustrate  or 
unfold  the  apprupriato  sense;  but  unless  it  stands  well  with  the 
conte.vt  and  subject-matter,  it  must  yield  to  the  latter.  While, 
then,  wc  may  well  resort  to  the  meaning  of  single  words  to 
assist  our  inquiries,  we  should  Dorcr  forgot  that  it  is  an  in- 
stnuni-ut  of  government  we  arc  to  oonstruv;  and,  as  has  been 
alreiidy  stated,  that  must  be  tho  truest  exposition  which  beat  bar- 
moniicv  with  its  design,  its  objects,  and  its  general  8tructure.*(a) 

§  456.  The  remark  of  ilr.  Burke  may,  with  a  very  sli^^i 
change  of  phrase,  be  addressed  as  an  admonition  to  all  thoao 
who  are  called  upon  to  fnuno  or  to  interpret  a  coDstitntioa. 
OovenuiH-ut  is  a  practical  thing  made  for  the  happinew  of  man- 
kind, and  not  to  furnish  out  a  spectacle  of  nniformitr  to  gratify 
the  schemes  of  visionary  politicians.  The  busineaa  of  those  who 
are  called  to  administer  it  is  to  rule,  and  not  to  wrant;le.  It 
would  bo  a  poor  compensation  that  one  had  triumphed  in  a  dis* 


>  Mr.  HuUaw^  Vbttal*  RapMt,  Jww;  7,  ISOO^  p.  f ;  wt*,  {  SOS,  p.  IM. 
*  8m  VtaiA.  B.  S.  ch.  ir,  K  SSS,  IML 

(■)  SMlI(MhBw».rHtcf.9rkfc.31t.fcrlGrdll«Mattki«ilUiMldwtbrCbM 
toMof  Fwfcw. 


CH.  T.] 


BULKS  or  INTEBFBKrATIOK. 


S49 


pate  whilst  we  had  lost  an  empire ; '  that  we  had  frittered  down 
a  power,  and  at  the  same  time  had  destroyed  the  Republic  (a) 

1  BnAa'a  Lsttor  to  the  Shanfik  of  Bristol  in  1777. 


(a)  We  must  not  tliBn  confina  tba  pow- 
an  of  the  federal  State  within  the  liitdta 
of  B  nanow  and  partiaan  Donatrnctioo. 
"  We  «e  to  anppoM  that  thoae  who  are 
delegated  to  the  gnat  bniiDeea  of  diatrib- 
iiting  the  powen  which  emanated  tnaa  the 
■aTenignt;  of  the  people,  and  to  the  eetab- 
liahmant  of  rnlea  for  the  perpetoal  Becmity 
of  the  rights  of  penon  and  propertjr,  had 
the  wisdom  to  adapt  their  language  to  fn- 
tare  u  well  u  eiiatiiig  emergendea ;  so 
that  word*  oonpetent  to  the  then  eziatiiig 


atals  of  the  comnmnlt]'  and  at  the  aame 
time  eapaUe  of  being  expanded  to  embrace 
more  axtenaive  nUtiona,  ahonld  not  be  re- 
■baioad  to  their  more  obriona  and  imme- 
diate eenas,  if,  conslateatl;  with  the 
general  o^tject  of  the  anthora  and  the  tnie 
princlplea  of  the  compact,  tbef  can  be  ex- 
tended to  other  relattona  and  circnmatanoai 
which  an  improred  atata  of  tocie^  may 
prodnce."  Henabaw  ■■  Fetter,  B  Pick. 
317,  per  TtAa,  Ch.  J. 


CONSTITUTION   OF  TUU   UNITED  STATES.  [BOOK  IIX. 


CHAPTER   VL 


THE  PBIIAHBUE. 


§  457.  HATmo  iligpoiicd  of  these  preliminarT  tn^mries,  we  are 
now  nmv«4)  at  Uiat  pait  of  our  laliora  which  involves  a  oom- 
mentary  upon  the  actual  provisions  of  tJic  Cunatitution  of  tlie 
Unit«d  Statvii.  It  ia  proposed  to  talce  up  the  succeBaive  cUus« 
in  the  order  in  which  thoy  stand  in  th«  instrument  itftelf,  so  that 
the  exposition  may  naturally  flow  from  thu  terms  of  the  texL 

§  468.  Wo  bo^n  then  with  the  preamble  of  tlto  Constitutioo. 
It  is  in  the  fo]lowin>f  words:  — 

"  We,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquilli^, 
provide  for  the  common  defence,  promote  the  general  welfare, 
and  secure  the  blessing  of  liberty  to  oursolrea  and  our  {MMtcrity, 
do  ordain  and  cstabliish  this  Constitution  fur  tlie  United  States 
of  America. " 

§  459.  Tile  importnnco  of  examining  the  preamble,  for  the 
purpow  of  cspoundinif  the  lan^age  of  a  ststnt*^,  has  been  long 
felt,  and  univer»a)iy  conceded  in  all  juridical  discussions.  It  ia 
■n  admitted  maxim  in  the  ordinary  course  of  the  administratitHi 
of  justice,  that  the  preamble  of  a  statute  is  a  key  to  open  the 
mind  of  the  makers,  as  to  the  miscJiiefa  which  are  to  be  remedied 
and  the  obje«t»  which  are  to  be  accomplished  by  the  pmvisions 
of  the  statute.  We  find  It  laid  down  in  some  of  our  eiirliest  au- 
thorities in  the  common  lav,  and  civilians  arc  accustomed  to 
a  similar  ex|irc*sion,  cfttanle  legu  prcrtnio,  etttat  ri  ipta  /«;* 
Probably  it  hai4  a  foundation  in  the  expression  of  every  oode  of 
written  law,  from  the  nnirersal  principle  of  interpretation,  that 
the  will  and  intention  of  the  legislature  are  to  be  r^ganled  and 
followed.  It  ia  properly  resorted  to  where  douhts  or  ambif^itiea 
arise  upon  the  words  of  the  enacting  part;  for  if  they  are  clear 
and  unambif^uoua,  there  secraa  little  room  for  interpretation,  ex- 
cept in  cases  K-adinyr  to  an  obvious  absurdity,  or  to  a  direct  over- 
throw of  the  intention  expressed  in  the  preamble. 

>  Bm.  AlnJtf.  SutDtcl.j  S  Floirdm,  K.  MS  I  1  laU.  ». 


CB.  TI.J 


THE   PBEAMBLE. 


851 


§  460.  There  does  not  Mom  ao}*  reason  vrhir,  in  a  fandamontal 
law  or  constitution  of  jroviTnmciit,  an  equal  attention  sbuuld  not 
be  given  to  the  int«.'ntion  of  tht-  framor»,  us  stated  in  tbu  pniam- 
ble.  And  acvordinj^ly  w«  find  that  it  bna  bciin  coii^tantlj  n- 
ferred  to  by  otaU'smcn  and  jtirista  to  aid  tlicm  iu  tlic  cxjMeition 
of  it«  provisions. ' 

§  461.  Tbo  lan^iajre  of  Iho  preamble  of  tbc  Constitution  was 
probably  in  a  ^ood  uii^usurc  drawn  from  that  of  Uie  third  article 
uf  the  coofedenttion,  which  declared  tliat  "  The  said  Htntes  lierebj 
Bevcrally  enter  into  a  hrm  Uatfu*  of  friendship  with  each  other, 
for  their  common  defence,  the  security  of  tlieir  liberties,  and 
their  mutual  and  general  welfara"  And  ve  accordingly  find 
thftt  the  first  res'diition  pm|>osRd  in  the  C4>nYcntion  which  fram<^d 
the  GonstitHtion  was,  that  tlie  Articles  of  the  Confederation  ought 
to  be  80  corrected  and  enlarged  as  to  accomplish  the  oltjects  pro- 
posed by  their  institution,  namely,  common  defence^  aocurity  of 
liberty,  and  general  welfare.' 

%  462.  And  here  we  muat  guard  ouraelrefl  against  an  error 
which  is  tno  often  allowed  to  creep  into  the  discuiwions  upon  tliis 
suljjcct  The  preamble  never  con  be  resorted  to  to  enlarge  the 
powers  confided  to  the  general  government  or  any  of  its  depart- 
ments. It  cannot  confer  any  power  per  *«/  it  can  never  amounty 
by  implication,  to  an  enlargement  of  any  power  expressly  given. 
It  can  never  l>e  the  legitimate  source  of  any  implied  power, 
when  otherwise  witlidrawn  from  the  Constitution.  Its  true  otiico 
is  to  eitimnnd  the  nature  and  extent  and  application  of  the  pow- 
ers actually  conferred  by  the  Constitution,  and  not  Bubetantivcly 
to  create  them.  For  example,  the  preamble  declorea  one  obji-^t 
to  be,  "to  pro^'ide  for  the  common  defence."  No  one  can  doubt 
that  this  does  not  enlarge  tlio  powora  of  Congress  to  pass  any 
measures  which  they  may  deem  useful  for  tlic  common  defence.* 
But  suppose  the  terms  of  a  given  power  admit  of  two  coustnic- 
tiODS,  the  one  more  re-strictire,  tlie  other  more  liberal,  and  each 
of  them  is  consistent  with  the  words,  but  is,  and  ought  to  be, 
governed  by  the  intent  of  the  power;  if  one  would  promot*?  and 
the  other  defeat  the  common  defence,  ouj^it  not  tbo  former,  upon 

I  Am  ChitlMlM  «.  OMTgIa,  Chkf  JMtko  Jky*!  eiriy  on,  S  DdL  410. 

*  Jonnal  «f  CMiT^ntimi,  fH  ;  Id.  BS. 

*  TM,  atniigtijrmcnigti,  tliiioIywtianwHiiTsedKtTltnaaoadrilklMttkaidop- 
liBn  of  tk  CoMtimlkiL    1  EUmI'i  DebftUa,  2M,  WO. 


852 


coNsrmmofr  op  the  dkttbd  btatbs.        [book  in. 


the  BoniKleBt  principles  of  ititcrpretntion,  to  be  adopted?  Arc 
Te  at  liberty,  upon  *nj  principles  of  reason  or  eommon-»cn8«,  to 
adopt  a  restrictive  moaning  which  will  defeat  8n  avowed  object'j 
of  the  ConBtitution,  when  another  etiually  natural  and  more  ap- 
propriate to  the  object  ia  before  us?  Would  not  thin  be  to 
deHtrof  an  inatrument  by  a  mcaaare  of  its  wordn,  which  tiiat 
instrument  itself  repudiates? 

§  463>.  We  haro  already  had  occasion,  in  considering  the  na- 
ture of  the  Constitution,  to  dwell  upon  the  tcnna  in  which  tho" 
preamble  ia  conccired,  and  the  proper  conclusion  dcduciblc  from 
it  It  ia  an  act  of  the  people,  and  not  of  the  States  in  their  po- 
litical capacities.'  It  is  an  ordinance  or  catabliahmtMit  of  gov- 
ernment, and  not  a  compact,  though  originatinf;  in  coiiBcnt;  and 
it  bindu  as  a  fundamental  law  prumulgutiHl  by  the  sovL-reijni  au- 
thority  and  not  as  a  compact  or  trcoty  entered  into  and  in  fieri, 
bctwc>en  each  and  all  the  citizens  of  the  United  Stat^a  as  dis* 
tincl  parties.  The  language  ia:  "We,  the  pe»pi«  of  the  United 
States"  (not,  We,  the  Statet),  "do  ordain  and  «*faWi»A "  (not, 
io  eoHtmet  ViUd  enter  into  a  (r«i(y  with  each  othi>r>  "this  Con- 
Ititvtion  for  the  United  States  of  America"  (not  thia  treaty' 
between  the  several  States).  Aod  it  is,  therefore,  an  unwai^ 
rantable  assumiition,  not  to  call  it  a  most  extrav^ant  atreteh  of 
interpretation,  wholly  at  variance  with  the  language,  to  substi- 
tnte  other  words  and  other  senaee  for  the  worda  and  eenaieai 
incorporated  in  this  solemn  manner  into  the  sulxnlance  nf  the 
instrument  itself.  We  have  the  strongest  assuraitcett  that  this 
preamble  was  not  adopted  as  a  mere  formulary,  but  as  a  solemn 
promulgation  of  a  fundamental  fact,  vital  to  the  character  and 
operations  of  the  government  The  obvious  obj(>ct  was  to  sub- 
stitute a  government  of  the  people  for  a  confederacy  of  States ;  a 
constitution  for  a  compact^  (<i)  The  difliculties  arisinpr  from  this 
Boorcc  were  not  alight;  for  a  notion  commonly  enough,  however 
incorrectly,  prevailed,  that,  as  it  was  ratified  by  the  States  only, 

<  Sm  2  Uord's  D«l»t>^  i;S9,  ppl  its,  ISO.  ISL 

I  By  •  oonutibitfaa  ia  to  In  mdmUo^  my  Mr.  JoirtiM  WiUm,  ft  miutute  l*w,^ 
aiada  and  ntUed  bf  Umm  In  w1m«  th*  ■M«nf0i  fornn  of  tba  mmcb  iMiilia.  wUeh' 
pnacriba  Um  nuuiacr  in  wMdi  that  •OTanlcn  fymt  willi  thkt  Uit  gonmmant  •booU 
be  UiUtslal  a«d  *dHl*iatn«i.    1  WUtM'a  Lattaraa,  tlT. 

It  DontrilKitticI  nof  a  little  to  the  infinnitiM  of  tli«  Aitkka  of  tlta  OenCedaatini,  tknt  , 
it  na*w  had  a  tattflcation  hj  Uw  p*api«-    Ti>»  7«deraliat,  S3. 

(a)  8e»  Jamcaon,  OanadHtlMal  Cenraatko,  }  S9. 


CH.  t:.] 


TBR  PRKAMBLB. 


868 


tho  StaUra  respectively  at  their  pleaaure  might  repeal  it;  and 
Uiis,  of  it««lf,  proved  the  ni'ecseit;  of  lajini;  the  foundatioiLi  of 
a  natioiuil  ^overiimeitt  deeper  than  in  thu  mere  Bunctioa  of  del- 
ejnted  iwuer.  The  convention  detvrmiiii'i]  that  the  fabric  of 
American  empire  ought  to  re«t  uid  shuuld  rest  on  the  solid 
basis  of  itho  congimt  of  the  people.  The  streumiS  of  national 
power  ou^ht  to  (low  and  should  tlow  immediately  from  th«  high- 
est uri|;itial  fountain  of  all  Icj^itimatv  authority.'  And,  occord- 
inKljf  the  advocates  of  Uie  ConMtilutiou  so  treated  it  in  their 
reasoning  in  favor  of  its  adoption.  "The  Constitution,"  Raid 
tho  Federalist,  "is  to  bo  founded  on  the  assent  and  ratification 
of  the  people  of  America,  giTen  hy  deputies  cleetcd  fur  that  pur- 
pose; hut  thiii  aanent  and  rati6cation  is  to  ho  given  by  tho 
people,  not  as  individuals  composing  a  whole  nation,  hut  us 
composing  the  distinct  and  independent  States  to  which  they 
belong,"'  And  tho  uniform  doctrine  of  the  highest  judicial 
anthority  has  accordingly  been,  that  it  was  the  act  of  the  people, 
and  not  of  the  States ;  and  that  it  Iwund  the  latter  as  subordinate 
to  the  people,  "Ijct  us  turn,"'  said  Mr.  Chief  Justice  Jay,  "to 
the  Constitution.  Ttie  people  therein  declare  that  their  design 
in  establishing  it  comprehended  six  objects :  1.  to  form  a  more 
perfect  union;  2.  to  establish  justice;  8.  to  insure  domestic 
tranquillity;  4.  to  provide  for  the  common  defence ;  5,  to  pro- 
mote the  general  welfare;  6.  to  secm-e  the  bleHsings  of  liberty  to 
themselrcs  and  their  posterity.  It  would,"  ho  added,  "bo  pleas- 
iDg  and  useful  to  consider  and  trace  the  relations  which  each  of 
these  o)>jects  bears  to  the  others,  and  to  show  that,  collectively, 
they  comprise  OTorything  refjuisit^  with  the  blessing  of  Divine 
Providence,  to  render  a  people  prosperous  and  happy."'  In 
Martin  p.  Hunter's  Lessee,*  tho  Supreme  Court  say,  as  we  havo 
seen,  "The  Constitution  of  tho  United  States  was  ordained  and 
cstnblishM,  not  by  the  States  in  th<;ir  sovereign  cspacitlcs,  but 
emphatieally,  as  the  preamble  of  the  Con«ititiitiou  deelarcs,  by  tlio 
people  of  the  United  States ; "  and  language  still  more  expressire 
will  be  found  used  on  other  solemn  occasions.' 


1  TlwF«l«nlut,  Ko.»i  •M>lMyo.48i  1  Elliot's  D«IMm,  75 1  inK,  |>.  03- 
■  The  rtiknliit,  Ho.  SB  ;  Id.  Xo.  84. 

•  ChUholm  ■.  Gtot^it,  S  D>1L  tM,  *  1  WhML  B.  SOS,  334. 

*  Sm  McCvllocb  V.  HujUad.  I  Wh«aL  R.  >1<,  t<H,  403  :  Cabala  w.  Viixiiiu,  « 
WhmL  H.  941,  413,  4Mi  Mcilw  1  Kcnt't  Omuil.  LdM.  10,  p.  18». 

VOL.  1.  —S3 


354 


CONSXITCnOS  OP  TOB  DNITED  STATER.  [BOOK  lit. 


§  464.  But  tliia  point  hna  been  so  much  dvplt  upon  b  the 
dUcuiuion  of  other  to]>icit,i  that  It  is  wholly  unneceMttiy  to  pur- 
sue it  further.  It  docft,  however,  deserve  notice^  ihut  this  jthra- 
scology  was  a  mntlcr  of  much  critical  debate  in  «ome  of  tlio 
conventions  called  to  ratify  the  Constitutiou.  Ou  the  one  hand  it 
wu  pressed,  as  n  subject  of  jiint.  nlnnn  to  the  ■'^tnb'i*,  that  the  peo- 
ple were  substituted  for  the  States;  that  this  would  involve  a  de- 
straction  of  the  States  in  one  consolidated  national  government; 
and  would  terminate  in  the  subvenjion  of  the  public  liberties. 
On  tbe  other  hand,  it  wnfl  urged,  aa  the  only  safe  course  for  the 
preservation  of  tlie  Union  and  tbe  liberties  of  the  people,  that 
the  government  Rhoiil{l  emanate  from  the  people,  and  not  from 
the  States ;  that  it  should  not  be,  like  the  confederation,  a  more 
treaty,  operatin^r  liy  rt'ciuisitiona  on  the  States;  and  that  the  peo- 
ple, for  u-ha«H!  bcilelit  it  was  framed,  ought  to  have  the  sole  and 
e.\clnaiTO  right  to  ratify,  amend,  and  control  ita  provisiunx.* 

§  465.  At  this  distan<M!  of  time,  after  all  the  passions  and  in- 
tcrcats  which  then  at^itated  the  country  have  passed  away,  it  can- 
not but  be  matter  of  surpriDu  that  it  should  have  boon  ur^^,  as 
a  solid  objection  to  a  ^vernmeut  iiiti.-ndod  for  the  benefit  of  the 
people  and  to  operate  dlreetly  on  them,  that  it  was  nKjuired  to  bo 
ratified  by  them,  and  not  by  bodies  politic  created  by  them  for  other 
purpoiH-s,  and  having  no  implied  authority  to  act  on  the  subject 

§  466.  Tho  OonstitutioQ  having  been  in  oporatioo  moro  than 
forty  \-cars,  and  Ix^ng  gener«Ily  approved.  It  may,  at  first  sight, 
seem  unnecessary  to  enter  upon  any  examination  of  the  manner 
and  extent  to  which  it  is  calculated  to  accomplish  the  objeoti 
proposed  in  the  preamble,  or  the  importance  of  tho^e  objects, 
not  merely  to  the  whole,  in  a  national  view,  but  also  to  tbe  indi- 
vidual States.  Attempts  have,  however,  been  made  at  different 
times,  in  dilTerent  parts  of  the  Union,  to  atir  up  a  ditaffection 
to  the  theory,  as  well  as  the  actual  exercise  of  the  powers  of  the 
general  govermnent ;  to  doubt  ita  advantages ;  to  exonerate  the 

>  Jit,  m\s-ti^ 

*  TM  ieUba  in  Uu  Viij^nlk  CoBTUitiati  mv  ittj  pointad  «a  tbi*  nlject.  Hr. 
Bwirj  »s**I  Uiae  o^Mtioiw  i^datt  it  la  >  nrj  fottjblc  iBAnittr  (I  KIUm*!  VlrjcfBia 
DibtMii,  4*.  61,  131) ;  ud  b«  WM  MpUid  lo,  >ii4  tho  pMunUt  TtnJiot*!!  «tih  fnal 
abtmy  hf  Hr.  Ruidolph,  Hi.  Pendbton,  Ur.  Lm,  Hr.  NIcholMi  tnA  Ht.  CurWa.  S 
EUiot'i  Vlifi&U  P»Wlc«,  d,  ST,  V7.  98.  Th*  nilajrct  b  ibo  dwnianl  in  the  Iforth 
CaiiDlliM  tVtaM  rs  ElUoft  Dnb.  IS*,  llfi),  and  in  Ui*  UuvdnvCU  OelatM.  1 
EUiM't  Deb.  li,  no.    >M  ftiM  S  PUk.  liUt  «;0  ;  S  Aant.  UuMUn,  &M,  MC 


CH.  T1.] 


THB   FRKAMBLR. 


355 


unayoidabtfi  inequalities  of  its  operations;  to  ncctutom  tLc  minds 
of  the  people  to  contemptato  the  conHequenoes  of  a  division,  u 
frau(;)it  n-itb  no  dan^vroua  cvilti ;  and  thus  to  lead  the  way,  if  not 
deHi(n«'dly,  at  leant  iosuiuiibly,  to  a  suparation,  as  involving  no 
ncivsHary  sacrifiCA  of  important  blessings  or  principlea,  and,  on 
the  whole,  ttndcr  some  circumatuncci),  a«  not  uudi-eirablo  or 
improbable 

§  467.  It  is  easy  to  «co  how  many  different  and  even  opposite 
niuti\-es  may,  in  difTorcnt  p«rt«  of  the  Union,  at  different  times, 
give  rise  to  and  encourage  sucit  speculations.  Politieal  piuuions 
and  prejudices,  the  disappointments  of  pcreoiiul  ambition,  the 
cxoitemonts  and  mortifications  of  party  strife,  the  stm^les  for 
particular  systems  and  measures,  the  interests,  jealousies,  and 
rivalries  of  particular  States,  the  unequal  local  pressure  of  a 
particular  system  of  policy,  either  temporary  or  permanent,  the 
honest  xeal  of  mere  theorists  and  enthusiasts  in  relation  to  ^r- 
emmont,  the  real  or  imaginary  dread  of  a  natioual  consolidatioa, 
the  deliiisive  atid  corrupt  projects  of  mere  dcmagi^ncs,  — these;, 
and  many  other  influences  of  more  or  less  ptiritjr  and  extent, 
may,  and  we  almost  fear  must,  among  a  free  people,  open  to  ar- 
gumcut  and  eager  for  discussion,  and  anxious  for  a  more  perfect 
oi^nization  of  society,  forever  preserve  the  elements  of  doubt 
and  discord,  and  bring  into  inquiry  among  many  minds  the 
quMlion  of  the  vatao  of  the  Union. 

§  468.  louder  th«*e  circumfttanc<>a,  it  may  not  be  wllhont  some 
osc  to  condense,  in  an  abridged  form,  snnto  of  tbnsc  reasons 
which  became,  vith  reflocting  minds,  the  solid  foundation  OD 
which  the  adoption  of  the  Constitution  was  oripinally  rested, 
and  which,  being  permanent  in  their  nature,  ouglit  to  secure  its 
perpetuity  as  the  shoot-anchor  of  our  political  bopca.  Let  na 
follow  out,  then,  the  suggestion  of  Mr.  Chief  Justice  Jay,  in  the 
passage  already  eit«.-<d.' 

§  4ti9.  The  Constitution,  then,  was  adopted,  firet "  to  form  a 
more  perfect  union."  Why  this  was  desirable  has  been  in  some 
measure  anticip«ted  in  considering  the  defects  of  the  confedera- 
tion. When  the  Constitution,  howercr,  was  before  the  people  for 
rati(ic4ition,  suggestions  were  frequently  made  by  those  who  were 

I  Chiahobn  *.  GBotpa,  S  D>I1.  B- 110.  VTg  thall  frwiy  nta  the  ulminble  mMrmlnfl 
ef  lb*  rrdnnlut  on  tkrinlf)MtariliD  ITnioo,  withnat  in  cir«]riattaM%«oti^g(li«ii«r- 
tlCDUr  citaUotu,  u  tbtj  would  <*c«mbcr  Um  taXU 


8S6 


COKBTITCTION  OF  THE  0X1713)  STATffl.  [BOOC  HI. 


opposed  to  it^  that  the  country  vtm  too  extensive  for  a  siogle 
national  frorcmmcDt,  and  oajiht  to  bo  broken  up  into  several  dia- 
tinct  confederacies  or  sovercii^tics ;  and  some  even  went  aof&r  ob 
to  doubt  whether  it  wore  not,  on  the  whole,  bent  that  each  State 
should  rctiiin  a  separate,  indciMindcnt,  and  sovereign  political 
oxistoocc'  TlioKc  who  contemplated  Boreral  confederacies  spec- 
ulated upon  a  disniembermeut  into  three  ^reat  confederacies,  ooe 
of  tjic  Northern,  another  of  the  Middle,  and  a  third  of  the  South- 
cm  i^tatea.  Tho  greater  probability,  ccrtainlj,  (ben  wa«  of  a 
Koparalion  into  two  confederacies ;  the  one  composed  of  tJ>c  North- 
ern and  Middle  States,  and  the  other  of  the  Southern.  Th^ 
renMning  of  the  Federalist  on  this  subject  seems  abaolutcly 
irresistible.'  1'hc  prt^crefls  of  the  population  hi  tho  Western 
territory,  since  that  period,  has  matennlly  changed  the  basis 
of  all  tliat  reasoning.  ITiere  coold  scarcely  now  exist  upon  any 
diamemliernient  (with  a  view  to  local  interests,  political  associ* 
ations,  or  public  safety)  less  than  tJiree  confederacies,  and  most 
probably  four.  And  it  is  more  than  jiroljable  that  tho  line  of 
diriaion  wotild  be  traeed  out  by  geographical  boundaries  which 
would  separate  the  staveholding  from  the  non-elareholding  State*. 
Such  a  distinction  in  gorenunent  is  so  fran^ht  with  causes  of 
irritution  and  alarm  that  no  honest  patriot  ocMild  contemplate  it 
without  many  painful  and  distressing  fears. 

§  470.  But  the  material  consideration  which  should  be  kept 
steadily  in  view  is,  tluit  under  such  circumstances  a  national 
Korenuncnt,  clothed  with  powers  at  least  equally  extonsivB  with 
those  given  by  the  Constitution,  would  be  indispensable  for  the 
preservation  of  each  separate  confederacy.  Xsy,  it  cannot  be 
doubted  that  much  larger  powers  nod  much  heavier  expenditures 
would  be  Docessary.  No  nation  could  long  maintain  its  public 
liberties,  suirooaded  by  powerful  and  vigihmt  neighbors,  ooIcbs 
it  poaseased  a  goremment  clothed  with  powers  of  great  eRSot«Bey, 
prompt  to  act,  and  able  to  repel  every  ioraaion  of  its  ri|chta.  Ifor 
would  it  afford  the  slightest  security  that  all  the  coofederacias 
were  composed  of  a  people  descended  from  the  same  anceatora, 
■peaking  Uie  sane  huoguage,  pioJwsiag  the  same  relifrioo,  at- 
tached to  the  saate  principle*  of  garenusent,  and  passessing  simi- 
lar manners,  habits,  and  customs.     If  it  be  true,  that  tlicse  eir- 

1  na  rW-nlitf,  Nm.  1,  &  9;  It,  1«:  t  Wlkn'*  Vofki,  tU.  »S;  rU«jV  Man) 
nd  palitiHl  FUkMphr.  &  4  ck.  a.  ■  TW  ttamam.  Sm.  U.  14. 


CH.  Tl.] 


TSR  raBA3IBL& 


8&T 


cutnstancen  would  not  bo  sufficient  to  hold  thflia  in  s  bond  of 
peace  and  onion  when  foniiing  one  govenuuL'nt,  acting  for  tho 
interests  uud  as  tho  repre»entatjv«B  of  tho  rights  of  tho  whole, 
huw  could  A  better  fate  be  expected  when  the  intvreeta  and  the 
rcpnjKciitutioD  were  eeparate,  aiid  ani)>ition,  and  lui-jil  intcreHtg 
utd  fftelinge,  and  peculiaritieH  of  climate  and  [»roduct8,  and  in- 
gtituliotiA,  and  imaginary  or  real  aggresaions  and  grierances, 
and  the  rivalries  of  commerce  and  the  jealousies  of  domtntoD 
shwild  spread  themselves  over  the  distinct  cmincils  which  would 
regulate  their  concerns  by  indcpentlent  legislation  ?  ■  The  cxp«- 
lience  of  the  whole  world  is  against  any  reliance  for  security  aud 
peace  between  ncifrfaboring  nations  under  sncb  circunuitanoet. 
Tlie  Abbe  Mably  has  forcibly  staled  in  a  single  passage  tho 
iriiole  renttlt  of  human  expcricneo  on  tliis  subject  "  Nei^bor- 
ifig  Btatcs,"  says  he,  **o.k  uaturully  i-ncmics  of  each  other,  imless 
their  common  weakuois  forces  them  to  league  in  a  confedemtiTQ 
republic,  and  their  constitution  prevents  tho  difforouoos  that 
neighborhoud  occasions,  extinguishing  thutsucrrt  jealousy  which 
disposes  all  states  to  aggrandize  themselves  aC  the  expense  of 
their  ncigbbon. "  This  passage,  as  has  been  truly  oljserred,  at 
the  same  time  points  out  the  evil  and  suggests  the  remedy.' 

§  47L  Tho  satno  reasoning  would  apply  with  augmented  force 
to  the  case  of  a  dismotiilKmneut  when  eiu-li  Htatc  should  by  itself 
constitute  a  nation.  ITic  very  iiie<junlities  in  the  size,  the  rev- 
enues, the  population,  tho  products,  tlic  interests,  and  even  in 
the  institutions  and  laws  of  each  would  oocasion  a  perpetual 
petty  warfare  of  legislation,  of  border  agressions  and  violations, 
and  of  political  and  pcnionat  animositic:^,  whicli,  fii«t  or  last, 
would  terminate  in  the  subjugation  of  the  weaker  to  the  arms  ot 
the  stronger.^     In  our  ^l^tJle^  observations  on  this  subject,  it  is 

1  The  FodcnlUl.  Nos.  3, 5,  e,  T  i  S  WitMia'i  W<nki,  2Sfli  Pktqr'*  Voml  aad  PoliU- 
ciri  nUemtfbj,  B.  4,  tk.  S. 

*  TW  FwlimlM.  Ha.  & 

Tint  reinuki  wIikI  T«iriia  pati  Is  tli«  mooth  of  Calgtcniv  in  LU  Lif*  of  AgriMl*. 
tn  hm  applksble :  "  Kmlria  Ull  iliMnaloalbu*  m  iliMotilik  chri,  rilu  hoMfuni  in  glo. 
rim  cMTFitw  mi  rtitmit  ;(q<Mm  ooninnhim  «x  JinniHiink  ftBtib<u  ul  ■Kusdz  nt 
Mnoit.  It*  ulvBntt  diaolrait ;  am  *i  Cialloa  et  (tcnntUM  ct  (padat  dUtu)  BKUsiimnia 
pkmaqiKs  lioM  doaUsidoul  allmiB  BBKuinein  couunodont,  diutiu*  Uiutd  hoUm  qoan 
•arTiN,  Gill!  ■(  atTNtu  Uiwti  fmutb :  omiim  (t  tarrar  «•!,  isDnM  liMula  catiUU* ;  ^U* 
nbi  raonrvtiB.  <f^  tinwiv dcatoristi  odiMabdptat.'— TACtnm:  yUa  Aficalm.ctp. 
xsjdL 

*  Tho  FnbisUrt,  Km.  11,  S,  7.     It  iru  m  is  onr  ooloai*!  ttatt.     See  2  GnluaNri 


86a 


COKSTITUnOK  OP  TDK  ONITED  STaTB^.  [DOOK  in. 


not  proposed  to  dislin^ish  tho  cam  of  Bcrentl  conlodenusies  from 
Uiut  uf  »  compk-tv  it«p»r«tion  of  all  the  8tat«8,  as  in  a  general 
BonM  tho  reuLarkfl  fpflf  vith  irresistible,  if  not  will)  uniform, 
force  to  each. 

§  472.  Dock,  tlivn,  tliv  extent  of  our  territorj  form  any  solid 
objection  ai^inst  forming  "Uiis  more  perfect  anion  "t  This 
question,  so  far  as  rf*|>ect8  (lie  original  territory  included  within 
th«  boundaries  of  Uie  United  States  by  treaty  of  peace  of  1783, 
seenu  atniiMt  settled  by  the  experience  of  the  last  forty  yean.  It 
ia  no  longer  a  matter  of  conjecture  how  far  Ute  goTenuncnt  is 
Oftpable  (all  other  things  being  equal)  of  being  practically  applied 
to  the  wfaolo  of  that  territory.  The  distance  between  the  utmost 
limits  of  our  prvsont  population,  and  the  diventtty  of  interests 
amaa|{  tho  whole,  seem  tu  have  precented  »o  obstacles,  under  tbe 
bt-'urticent  ad  Diiaifit  ration  of  the  general  gorvmmeni,  to  the  roost 
perffct  harmony  and  gvneiml  adnmeement  of  all  Perhaps  it  has 
boea  domoiiatrated  (to  far  u  our  limited  expcrienoe  gioes)  that  the 
inetvasod  facilities  of  iutvrcoursu,  the  uniformity  of  rognlatioBS 
and  lavrs,  the  common  protection,  the  muttukl  sftcrifices  of  local  In- 
tBrwts,  whenincompatible  with  those  of  all,  and  the  pride  aad  ccn- 
fideoeo  in  a  gownuncnt  in  which  all  are  reprcsent*^^,  and  all  tat 
equal  in  rights  and  prtrilc^es, —perhaps,  wesay,  U  has  hctn 
dMBOBsCrated  that  these  effeeM  ol  the  Union  haT«  pmnolad,  in  a 
IdflMr  decree,  the  prosperity  ol  every  i<tate  than  could  hare  been 
attained  by  any  single  State  standing  aloae  in  the  freest  exereisn 
of  all  its  intelligence,  its  Rsooroca,  and  its  institntioos.  withoHii 
tMij  dieck  or  obstruction  dBrin;  tbe  aaine  period.  Tbe  great ' 
obuife  which  has  been  made  in  our  internal  ccsidition,  as  wvll  as 
in  ont  territorial  power,  by  the  aoqnisitign  of  Looiaiana  and  Flor- 
ida, hare,  indeed,  gifcn  rise  to  many  seriooa  rcOeetkias  vbttber ' 
sueh  an  expaosion  of  our  empire  may  not  benafier  endanger  tbe  < 
original  systrm.  But  time  akae  can  solTe  this  qaestifai;  and  tn 
time  it  is  tlK<  pari  uf  wisdom  Mrd  patriotism  to  lean  it. 

§  -ITS.    Wben,  however,  thit  Coostitativin  waa  before  the  peo^ 
for  adoptitvt,  objecUtias,  aa  ha»  be«K  already  m^fgtated, 
strennously  orvN)  asiaiBBt  a  fcnetal  gwrenmetit.  fcwmJed 
the  then  ext«^t  of  oar  terrttocr,  and  tbe  aatboj-itT  of  MiwtnKta 
was  relted  on  in  san'vK  of  tike  objecdons.,^     Il  ta  ndC  a  littW 
aarprisiag  Oak  Honlcsiiaien  abaold  ban  been  kHioI  vm  lor  I 


.B.K,<L1.    8H«b>l 


CH.  Tl.] 


TBE   PREAMBLE. 


SGft 


purpose.  Ho  obviousljr  had  ia  tict,  wlien  he  recommenda  s 
modvrulv  extent  of  territory  a»  best  »mtM  to  a  republic,  small 
stuti^-iS  wIiiiAC  ijiim-ri8tnn0  wcr«  far  lowt  Ihau  the  limits  of  uot!  half 
of  Ihii8«  in  the  Union;  bo  that,  upon  etriclly  folluwiuf;  out  his 
Buggi-iitioii»,  tli«  latter  ouglit  to  have  been  divided.  But  hu  sug- 
gests the  appropriate  rcinedj-  of  a  confederate  republic  (llie  very 
forui  adopttnl  in  the  Constitution),  as  the  proper  iiit.-ans  of  at  once 
securing  flafety  and  liberty  with  extensive  territory.*  The  truth 
in,  that  what  sim  is  safe  for  a  nation,  with  a  view  to  the  protec- 
tion  of  its  rights  and  liberties,  is  a  question  which  admits  of  no 
univcnuil  solution.  Much  de)(en(U  ii)>on  its  local  )>osition,  its 
DclghburA,  ita  rcouurces,  the  facilities  of  invasion  and  of  rupcU 
ling  iitvafiion,  tlio  gvDoral  state  of  the  world,  the  means  and 
weapons  of  warfare,  tlie  interests  of  other  mitions  in  pnMun'ing 
or  duitroying  it,  and  other  circurastniiocK,  vrhioh  scarcely  admit 
of  cunmcnilion.  How  far  a  re|iublicAn  govenimeut  can,  in  ft 
confvdi-rated  form,  be  c.vtt'uded,  and  1)6  at  once  ellicient  abroad 
and  at  hunii%  van  insure  general  happiness  to  its  own  citiicns,  and 
Lpcr)>etunle  the  principles  of  liberty  and  preserve  the  sidiiitance  of 
'justice^  is  a  gi'cat  problem  in  the  theory  of  governmont,  which 
America  is  now  endeavoring  to  unfold,  and  which,  by  tlie  bless- 
ing of  f!od,  vre  must  all  earnestly  hoi)e  tliat  she  may  snocessfully 
demonstrate. 
§474.  In  the  mean  time,  the  following  contnidoratioiLS  may 
ervc  to  cheer  our  hojies  and  dia]>el  our  fears:  first,  (1)  the  ex- 
ent  of  territory  is  not  incompatible  with  a  just  spirit  (A  patriot- 
ism; (2)  nor  with  a  general  representation  of  all  the  interests 
and  population  with  it ;  (8)  nor  with  a  duo  regard  to  the  peculiar 
local  advanlagcfi  or  disadvantages  of  any  part :  (4)  nor  with  a 
rapid  and  convenient  circulation  of  infonnution  useful  to  all, 
whether  they  are  rulers  or  people.  On  the  other  hand,  it  has 
^flome  advunta)^B  of  a  very  important  nature.  1.  It  can  afford 
Pgreator  protection  against  foreign  eitcmics.  2l  It  con  give  a 
wider  range  to  enterprise  and  commerce.  8.  It  can  seeurc  more 
■thoroughly  niitionul  independence  to  all  the  great  interests  of 
FBuciety,  agrieullure,  commerce,  manufactures,  literature,  learn- 
ing, religion.  4.  It  can  more  readily  disarm  and  trantiuilliite 
flomestic  factions  in  a  single  State.     6.    It  can  administer  jus- 

l  n»  F«J«nlbl,  Ifo.  B ;  I  WUmo-*  WotIu,  317  to  U» ;  3  WU»i>-.  Wotk..  S7g  to 

m. 


860 


coNSTtTunon  or  the  ukited  stateb.        [book  m. 


Uoe  nan  eonpletetr  snd  pcrfecUj.  fl.  It  can  """"""t 
revemics  for  pablie  objevU  vitboot  cippreaaion  or  heavj 
7.  It  eaoeoofiODiiseraotv  imil  itsintemiJkrnuii^eaieDti, 
emr  necewry.  In  duni,  as  has  beoi  said  vitb  equal  tnAh  aod 
fane,  "Ooe  gorentment  can  collect  and  avail  itscU  of  tbe  lakato 
and  experience  of  tfae  ablest  men,  in  wfaaterfr  pan  of  tbr  UiwM 
they  m^y  be  foood.  It  can  move  on  onlfonn  principla  of  pot- 
iej.  It  can  harmoDUDe,  aanmilate,  and  protect  tb*  aertia]  parts 
and  members,  and  extend  tbe  benefit  td  its  foreu^  and  pc«ea»* 
tions  to  each.  In  the  formation  of  treatiea,  it  will  regaid  dm 
inteteatB  of  tbe  whole,  and  the  particular  intereau  of  tbe  parta 
M  **tf'****^  with  that  of  tfae  TfaoI&  It  can  applj  tbe 
fli  fite  vkole  to  the  defence  of  anf  partJeslar  part,  and  that 
<anlf  and  expedilioaslr  than  Stata  govenmento  or  aeparate  < 
federacies  can  poaaiblt  do,  for  want  of  oanccxt  and  mutr  of  sj»- 
tern."  1  Upon  aoate  of  theae  toptes  we  m^  «alwi9"  bereaftae. 
■TlKFBbnbl.!E<Ll.  T^fcB— <ifiiiiniiWiaa«y  liiili  i.»».«.|— ^ 

ruHca^Of  mHw>liWlfci>iliiiiijiliBrfAMri«»»*i*|^ 

-Km,  i»  Att^v^vas,  tB^Kftmm  ma»MliiwtVj  ^  pufb  k  Mtateil  M 

tr  A*  |Mfi*  h  k«  dMM  hMx 

,  nl  tlM  tka  fMM  aOaa*!  !•  «ck  Hbdl-U-I  «»->«  • 

t  *S1  aMlMl  mA  Mkcr. « tW 

*»' 

I  rti  m    III II  if  iri  iiiiii.  •  111 

l«fll 

>  M  «i>  !««»  n  ai^Mt  fMUaMte  ar  >  H^Maj  if  a*  «Mt  >«7 

.ga^l^wiCiwMiL  I^fcf  ail|ii     1  Mil 


iiiiiirtj  iiln  [■  Mbm-  iiln  ■  rf 

of  Ite        J    -J.  IbC  H  ^  *• 


Elf  ihi 

TMte  aD  MthM^Tf  ka  b  «ffi  W  temd  hiM. 
lWw(M4^itair«aWb^HalMw«BiTr«l^  ^iJii^« 
r  Ikat  tha  l4^M  <f  BfivUMk  w  >f  tih  BtlBiailr  «a  b  ia  aill* 
iarth*Mvoi9-    taata>^MaMi^lh>«aeiii 


CH.  TI.] 


TBE  PItRAMBLlt. 


861 


§  475.  Tiio  union  of  th**e  States,  "the  more  perfect  union," 
18,  then,  and  nitiKt  forever  be,  invuluublo  to  nil,  in  rosgNKt  both 
to  foreign  and  domestic  concerns,  j  It  will  prevent  some  of  the 
ctiucs  of  wnr,  that  soonrgo  of  the  humnti  race,  by  enabling  tbe 
general  government,  Dot  only  to  ivogot)«t«  suitable  trc'sties  for 
the  protection  of  the  rights  and  interests  of  sll,  but  bjr  compel- 
ling a  genpral  obe^Jience  to  them,  and  a  general  reaprjct  for  the 
obligations  of  the  lav  of  nations.  It  is  notorious  that,  even 
under  the  confederation,  the  obligations  of  treaty  stipulations 
were  o]>only  violated  or  silently  dinreganled ;  and  the  pence  of 
the  whole  confederacy  was  at  the  mercy  of  the  majority  of  any 

otiHtarcMU,  and,  la  tht  oUibt,  <b  thamuIltpUdljef  mcU.  TIm  df^TM  of  Mcurit]r  io 
botli  ouM  wilt  d«i<tn<l  on  Um  iiaiiiWr  of  iiil«i««t«  and  •fcU  ;  &iid  Ihu  may  be  pnnini«d 
todqiMid  DO  tbd  extontof  couiiti7  and  numln  of  prnflBOOtiifnlMiideil  under  Uicauaa 
gnvenuDFtii.  Thia  Tie*  ot  tlis  ntlgtctinuat  putfMkriy  noeommand  «  ptoptrFMlcml 
qrHcm  to  all  the  atncan  and  Mnridoata  Mend*  td  NpaUicaii  goveniinutt ;  lino*  ll 
ahom,  tb>t  la  mmcI  (voportion  aa  the  Unberj  ef  tha  Ualao  may  ba  formed  ialo  niurt 
drcunuoKbcd  oonlalmuiM  or  SlatM,  e|i{inM(T«  «enitiia«tiaii«  of  a  nii^oiitf  will  ba 
beOtlatad :  tin  beat  •ncvritj',  mdcr  the  nfmUwan  (onn.  foi  tha  rigbta  of  tvrrj  clu*  of 
dltaoOrill  ^  dloilalibed ;  awl,  Mtueqiwiitlr,  llie  (UUIttj  ud  iiid«|inid«Me  of  aaiM 
manbat  of  tlu  ^vmim«ut,  tli«  oolr  otiMr  aecuriiy,  rauat  ba  profMrtlonaUjr  tocraaaad. 
Jutice  U  ibo  *iid  orgoveniinriit.  It  U  thi>  end  of  civil  Bocistir.  It  einr  hu  Imu,  and 
avf  will  te,  ponued  until  it  ba  obtaiii*4  o'  ""^^  liberty  be  lo>t  in  the  ponuit.  In  • 
tavMj  under  tha  foraw  of  which  tba  alronger  tWtion  «■&  rMrdUf  unite  and  opi'nM  tlia 
weakw.  aoartlijr  ma^  aa  tralf  be  said  to  ndgn  u  in  •  aUto  of  B*tui«  wiiMi  tha  wmkOT 
Indifidad  u  not  K«und  i^mt  the  Tiolanae  of  the  atTougar.  ^d.  u  ia  tba  latin 
Itat^  avcM  the  drongcr  IndiTiduala  are  prompted  bf  the  unoMtaintr  of  their  condition 
to  lubmit  to  a  t^'viTninrat  which  may  iirotcct  tha  weak,  aa  well  aa  llioniMlT«i^  to,  in 
tha  bnnsr  atata,  will  tha  mora  pcmarf&l  fattiona  b(  gradually  Induoad  by  a  Uka  notlva^ 
to  with  for  a  govmunent  wlucb  mil  potcet  all  frtim,  tb*  wnlur  ai  vail  aa  tha  mMa 
powcrfnl.  It  cna  be  little  dcnbtod,  that  tf  the  Slate  of  Hboifc  Uaikd  w«a  wp«nl«d  ftaa 
Um  ooafedcne;  and  bfl  to  UatU,  tho  inaacorily  of  tjghta,  under  tlu  popular  lenn  of 
fpTBrnnimit  wilhla  auth  narrow*  limlla,  would  ba  diaplaycd  by  ancb  r<!itf  nted  oppn^ 
tioaa  of  tha  ftctiovt  nia^liea,  that  aoma  paw«*,  altottrtlwrlndvpondenl  ol  the  paopt^ 
wouU  torn  be  called  for  by  tha  Toka  of  the  nry  tuniou*  whota  Diianil*  had  praaad 
the  tHcawity  of  it.  In  thesitonded  repuhlieof  the  United  ttbtei,  and  aiiiniiKibegrtat 
Tailtt;  of  lutanota,  piiti<«,  and  wcta  which  It  fabraoaa,  a  coalition  of  a  tn^oKly  of  the 
whoU  tocMy  eouU  aeUom  take  plaot  npen  any  other  [dnclplea  than  thoM  of  jnrtiea 
and  tliF  general  g^  [  whilat  there  btinf;  thoa  Itaa  daaft'*  *>  *  minor,  from  Ilia  will  of 
the  major  party,  then  nmrt  balawptaleitalaotoptDnJefotlMiMarityctf  the  turnatr, 
bf  Inlradndi^  into  the  fMumniDnt  ■  trill  not  depanibnt  oa  the  I*tt<r ;  a,  in  other 
wonb,>  will  IniUptnifealaf  thaaocle^ltMll  It  iaMolaMort^  tliat  it  i*  important, 
Botwtlhalandlnf  the  oontrary  ofrinlona  wUdi  hsve  baMa»t«f1alned,  that  the  huger  tha 
aeciaty,  ]<^)T)>lod  It  lie  within  a  fnclioaUe  aphnv,  tha  ntor*  duly  eapabt*  It  wUI  ha  of 
wlr-covpniBiFiit.  And,  happily  for  tbe  rc|iublioaa  oiuaa,  the  practkahla  aphera  may  ba 
carrietl  to  a  ver;  ftnu  uttnt,  by  «  judieiooa  Medificaticti  and  niztura  of  tha  Fadanl 
faineiido." 


862 


CONSnUTIOH  OP  TBE  UNITED  STATES.  [BOOK  m. 


single  State.  Jf  the  States  were  Bep«ratod,  they  would,  or  might, 
form  Bcp«rato  and  iudejiendeDt  treaties  with  dilTcrcnC  oatioDSt' 
according  to  their  peculiar  interests.'  I'hese  treaties  would,  or 
might,  involve  jcalotwies  and  ri^tilriesat  home  as  well  as  abroad, 
and  iiitroduoe  conflicts  between  natioiis  struggling  foranionop*^ 
oly  of  the  trade  with  each  State.  Retaliatory  or  evasive  stiptita- 
tions  would  be  made,  to  ctiunternct  the  injurious  system  of  a  neigh- 
boring or  dintant  State,  and  ihnu  the  scene  be  ag;iin  acted  over 
with  renewed  violence  which  succeeded  the  peace  of  llSSi,  when  tho 
common  interesia  were  foi^totten  in  tlie  gf^neral  stniK^te  for  su- 
periority. It  would  manifestly  be  tJio  interest  of  fon>if;a  nations 
to  promote  tliosc  animosities  and  jealousies,  that,  in  the  general 
weakness,  the  States  miglit  soek  their  protection  hy  an  undue 
sacrifice  of  their  interesli),  or  fall  an  easy  prey  to  their  anas.' 

§  476.    The  dangei-s,  too^  to  all  the  States  in  case  of  division, 
from  foreign  wars  and  invasion,  must  bo  imminent^  iii(Ici)t>ndi'nt 
of  those  from  the  neighborhood  of  die  colonies  and  dept-ndencica 
of  other  governments  od  this  continent     Their  very  weakness 
would  invite  aggression.     Tho  ambition  of  the  European  govera-i 
ments  to  obtain  a  mastery  of  power  in  colouiv*  and  distant  po»- ' 
sesatona  would  be  porpotuaUy  involving  them  in  embarrassing 
negotiations   or    conflicta,   howvvor    peaceable    niiirlit   be   their 
own  conduct,  and  however  iuoffciuive  their  own  pursuits  and 
objects.     America,  as  of  old,  would  become  the  theatre  of  war- 
like operations  in  which  she  had  uo  interests;  and,  with  a  view 
to  their  own  security,  Jthe  States  would  lie  comjtellcd  to  fall  back 
into  a  general  colonial  submission,  or  sink  into  dependencies  t^i 
such  of  the  great  European  powers  as  might  bo  moet  favorable  to 
tJieir  interests,  or  atost  commanding  over  their  resources.* 

$  477.  There  are  also  peculiar  iuterL^ls  of  some  of  the  States, 
which  would,  upon  a  sciHiratioo,  be  wholly  tuicrificcd,  or  become 
the  source  of  immeasurable  calamities.)  Ilie  Xcw  England  States 
hare  a  vital  inten-st  m  the  fisheries  with  their  rivals,  England 
And  Fraitce;  and  how  conld  New  England  resist  either  of  tbeae 
powers  in  a  struggle  for  the  common  right,  if  attempted  to  be 
restrained  or  atwlished?  What  would  become  of  Maryland  and 
Yirginia,  if  the  Chesapeake  were  under  the  dominion  u(  different 
foreign  powers  Je/atto,  though  not  in  form  t    The  free  navigo- 

)  Tht  F«dmll«t.  HaL  S.  3,  t ;  >  VOmn't  WwU  SM- 

i-nMr*iOTUrt,Koi.>,  (.6. 


OB.  n.] 


TOE  PRBAXBLB. 


86S 


tion  of  th«  Mississippi  and  th«  Uk«s,  and,  it  may  be  addMl,  the 
exclusive  navigation  of  tliem,  geenu  indispcnsablo  to  tbi;  iM.f.-uritj 
W  well  as  tbe  prosperity  of  tlie  W«8t«rn  8tat«s.     How,  other- 

ivtse  thaii  by  •  general  uniop,  could  Uiis  be  utuint«iQcd  or  gnar- 

l^anteed?' 

S  478l  (And  again,  m  to  commerce,  so  important  to  tJio  nari- 

.  gating   StalPtt,  and  ro  productive  to  tiio  agrti;ultunil   StaU.-it,   it 

tmust  be  at  once  perceived  that  no  adequate  protection  could  be 

ligiven  to  either,  unlesa  by  the  strong  and  uniform  ojierationt  of  a 
general  governmrnt. )  Each  State  by  itH  own  rvgulationa  would 
seek  to  promote  ita  own  interests,  to  the  riiin  or  injury  of  tbouo 
of  others.  The  relative  situation  of  these  States;  the  ntmiber  of 
rivers  by  wbivb  tlioy  are  intersected,  and  of  bays  that  wtuili  their 
aborcs;  tbc  facility  of  communication  in  every  direction;  the 
ftlfinity  of  language  and  mannora;  tbo  familiar  habits  of  inter- 
course,—  all  Ui08«  circumstances  would  conspire  to  render  an 
illicit  trade  lM:twc«n  tbem  matter  of  little  difficulty,  and  would 
insure  frequent  vraitiona  of  tho  commercial  regulations  of  each 
other.'  All  foreign  nations  would  have  a  common  interest  in 
crippling  us;  and  all  tJio  evils  of  colonial  scr\*itado  and  com- 
mercial monopoly  would  ))C  inflicted  upon  us  by  the  hands  nf  our 
own  kindred  and  noiglibors.*      But  tJiis  topic,  though  capable 

I  erf  being  presvuted  in  detail  from  our  past  experience  in  such 
glowing  colom  as  to  BUirtle  the  most  iucri'dulous  into  a  convic- 
titm  of  the  ultimate  poverty,  vrctchednvsA,  and  distress  which 
vould  ovcrwiK-lm  every  .St4ite,  doc«  not  require  to  be  more  than 
tainted  at.  Wv  have  already  seen,  io  our  former  examination  trf 
tbc  dcfoetM  of  the  confcderntion,  tbat  every  State  was  ruined  in 
it«  revenues,  as  well  as  in  ita  commerce,  by  the  want  of  a  more 

'iefficicnt  government* 

§  470.  Nor,  should  it  be  imagined  that,  Iiowcvcr  injurious  to 
commerce,  the  evils  would  be  less  in  respect  to  domestic  manu- 
factures atid  agriculture.  In  respect  to  manufactures,  tbe  truth 
iA  so  obvious  that  it  requires  no  argument  to  illustrate  it.     la 

[relation  to  tlie  ^ricultural  StatcA,  however,  an  opinion  has,  at 


■  Tbe  FelUnlis^  Ho.  IS.  ■  Thi  FedenUit,  No.  13. 

*  Tbr  PeamlUl.  HvL.  II.  19. 

•  Tl>«  FnlrMlUt,  No.  S,  7,  n,  IS :  a  miMa'i  Wmln,  CM ;  ]  Elliot'*  D«bU«^  71. 
Hi  :  1  -rockvr'i  Bhcfc.  Conun.  Xff.  1*8,  M9 ;  Browu  >.  MMybttd.  IS  Wrt.  R.  419, 
4iS,  4K. 


OOltenTDTIOK   OF  TBB  OKITED  6TATB9.  [BOOK  HI. 


aome  tiin«8  &nd  in  somo  Aectiota  of  the  eoiintr}-,  been  prcT&lent, 
that  ttif  agriculttirHl  iiitcrcttts  would  be  oqiiallv  safe  vriUioot  ttnjr 
general  KuvcrniDViit  Tlio  following,  among  oUier  considerations, 
nui]:  flcrv<;  to  hIiow-  tha  fallacy  of  all  ttuoh  suj^Kstions.  A  large 
and  iiniforni  miirket  ut  home  for  native  productions  haa  a  ten- 
dt-ncy  to  prevpnt  thoAO  sudden  rises  and  falls  in  prices  which  are 
ao  deeply  iiijurioits  to  the  farmer  and  the  planter.  The  exctn- 
sivo  possussiuii  of  the  home  market  against  all  foreign  competi- 
tion gives  a  permanent  security  to  investments  which  slowly 
yield  (heir  reluniis  and  encourages  the  laying  out  of  capital  in 
agTiciiltural  improxTnients.  ^upjMse  cotton,  tolMicco,  and  wheat 
were  at  all  timfis  adniitisible  from  foreign  statefl  without  doty, 
vonld  not  the  effect  l>e  permanently  to  check  any  cultivation  be- 
yond what  at  the  moment  seems  sure  of  a  itofe  sale?  Would  not 
foreign  nations  \te  perpctnally  tempted  to  send  their  surplus 
here,  and  thus,  from  time  to  time,  depress  or  glut  the  home 
market? 

§  4d0,  Again,  the  neighboring  States  would  often  engage  id 
the  same  species  of  cultivation,  and  yot  witli  very  different  nat- 
ural or  artificial  means  of  making  the  products  eqiuilly  cheap. 
This  inequality  would  immediately  give  rise  to  legislative  meas- 
ures to  correct  the  eril,  and  to  secure,  if  {lossihle,  superior  ad- 
rautages  over  the  n^-al  State.  Tliis  would  introduce  endless 
crimination  and  retaliation,  laws  for  defence  and  lawa  for  of- 
fiDil0&  Smuggling  would  bo  everywhere  openly  cooonrftged  or 
secretly  connived  at  Ttw  rital  interests  of  a  State  would  lie  io 
many  instances  at  the  mercy  of  its  neighbors,  who  might,  at  the 
same  time,  feel  that  their  own  interests  were  promoted  by  the 
ruin  of  their  neigfabora.  And  the  distant  States,  knowing  that 
their  own  wants  and  pur»uil8  were  uholly  disregarded,  woaU 
become  willing  auxiliaries  In  any  plans  to  encourage  cultivation 
and  consumption  elsewhere.  Such  is  human  nature!  Such  are 
tike  infirmitiiis  which  history  severely  instructs  us  belot^  to 
neighbors  and  rivals;  to  those  who  navigate,  and  those  who 
plant:  to  those  who  desirr,  atwl  those  who  rcpion  at  the  prgspcr> 
ity  of  Burronnding  States.' 

§  481.  Again,  foreign  nations,  under  such  cireumiitanoes,  mtwt 
hare  a  cummoti  interest,  as  carriera,  to  bring  to  the  agricnltoral 


ce.  VI.] 


THK   PSRAHBUK. 


S65 


States  their  own  manufactures  at  aa  daar  a  rate  a^  poMiblfl, 
and  to  d«pree(t  the  market  of  the  domcittii:  pruduc-ts  to  tho  mitii- 
mum  price  of  competition.  Tlwy  miiitt  Itavu  a  vomuiuQ  iiitcrcat 
to  Htimulalo  the  noigbboring  Htai4«  to  a  ruinous  jealousy;  or, 
by  fost«!ring  the  interasta  of  ooo  with  whom  they  can  deal  up- 
on more  advantageous  teritts,  or  orcr  wtiom  they  hare  acquired 
a   decisive   influence,   to  subjcet  to  a   corrcaitonding   iufluenco 

jothera  which  stniggle  for  an  independent  existence.'  This  is 
not  mere  theory.  Kxnmplrs,  and  succensful  exnmpk-s,  of  this 
policy  may  be  traced  throuffh  the  period  between  the  peace  of 
LT88  and  the  adoption  of  the  Coustituliou. 

§  482.  Itut  not  to  dwell  further  on  these  important  induvc* 
ments  **to  form  a  more  perfect  union,"  lei  ua  poits  to  (he  next 
object,  which  is  to  "jstahlish  jUBticc."    This  must  forever  be 

kone  of  the  great  ends  of  every  wise  government;  and  even  in  ar- 
bitrary goTemments  it  must,  to  a  great  extent,  \te  practised,  at 
least  in  respect  to  private  itcrsona,  aa  tlie  ouly  security  against 
rebellion,  private  vengeance,  and  popular  cruelty.  But$n  a  free 
government  it  lies  at  the  very  baaia  of  all  ilA  institutions.'  With- 
out  justice  beini;  freely,  fully,  and  impartially  administered, 
neither  onr  persons,  nor  otir  rights,  nor  our  property,  can  be 
protected.  And  if  Ihefie,  or  either  of  them,  are  regulated  by  no 
certain  laws,  and  are  subject  to  no  certain  principles,  and  are 
held  by  no  certain  tenure,  and  are  redressed,  when  violated,  by 
no  certain  remedies,  society  fails  of  all  its  value;  and  men  may 
as  well  return  to  a  state  of  savage  and  barbarous  independence 
No  one  can  doubt^  therefore,  that  the  cstablishtncnt  of  juatioo 

.mast  bo  one  main  object  of  all  our  State  govcniments,  ^ITiy, 
then,  may  it  be  aski'd,  should  it  form  bo  prominvut  a  motive  in 
the  establishment  of  the  national  government  f 

§  488.  This  is  now  proposed  to  be  shown  in  a  concise  maimer. 
In  the  administration  of  justice,  foreign  nations  and  foreign  in- 
dividuals, as  well  as  eitiu-ns,  have  a  deep  stake;  but  the  former 
have  not  always  tui  eom]ile(e  means  of  redress  as  the  latter;  for 
it  may  be  prestmiod,  that  the  State  laws  will  always  provide  ade- 
quate tribunals  to  redress  the  grievonecs  and  sustain  llie  ri^lits 
of  their  own  citir^ens.  But  this  would  be  a  very  LmpeKect  view 
of  the  sabjoet  Citiiens  of  eontiguoos  States  have  a  very  deep 
interest  in  the  adminiBtmtion  of  justice  in  each  State;  and  even 

>  Tb«  Federmli<t,  No*.  *.  S,  U. 


rili 


366 


OOSSTIIunON  op  TBB  OJfrTED   9TATE8.  [BOOK  m. 


those  which  are  mont  distant,  but  Iwlonging  to  Ute  8ftm«  confed- 
eracy,  cannot  but  be  affected  hj  every  inequality  in  the  provi- 
sions or  the  actual  operations  of  the  laws  of  each  other.  While 
every  State  remains  at  full  liberty  to  legislate  upon  the  subject 
of  Hifihtii,  prifilegea,  contracts,  and  remedies,  as  it  may  please^ 
it  is  scarcely  to  be  expected  that  they  will  all  concur  in  the  same 
general  systora  of  policy.  The  natural  tendency  of  ^verj  govern- 
ment is  to  favor  its  own  citizens;  and  unjust  preferences,  not 
only  in  the  adminiatrafion  of  justice,  but  in  the  very  sfrueture  of 
the  lawB,  may  rciutonably  bo  expected  to  arise.i  Popular  preju- 
dices or  passions,  supposed  or  real  injuries,  the  prodominanc«  of 
home  pursuits  and  fL-elin<ni  over  the  comprvhcmii ve  vii-n-s  of  a 
liberal  jurisprudence,  will  n-jidily  acliicvo  the  most  mi»<'liievuus 
projects  for  this  purpose.  And  these,  again,  by  a  natural  reac- 
tion, will  introduce  corrr«pondcat  regulations  and  retaliatory 
measures  in  other  States. 

§  484.  Nov,  exactly  what  this  course  of  reasoning  has  led  as 
to  presume  as  probable,  hua  Wen  doinonntratpd  by  experience  to 
be  Jrue  in  respect  to  our  own  confederacy  during  the  short  period 
of  its  existence,  and  under  circumstanoea  well  calculated  to  in- 
duce each  State  to  sacrilicc  many  of  its  own  obJG4?ts  for  the  gi>n- 
eral  good.  Nay,  even  when  we  were  colonies,  dependent  upon 
the  authority  of  the  mother  country,  theao  inequalities  ven  ob- 
servable in  tlie  local  legislation  of  several  of  the  States,  and  pro- 
duced hcartbumingi)  and  discontents,  which  were  not  easily 
appeased. 

§  485.  First,  in  res|)ect  to  foreign  nations.  After  t1i«  confed- 
eracy was  formed,  and  we  had  assumed  the  general  rigfits  of  wu 
as  a  sovereign,  belligerent  nation,  authority  to  make  captures 
'^and  to  bring  in  ships  and  cargoes  for  adjudication  naturally 
flowed  from  tJic  proper  exercise  of  these  rights  by  tlie  law  of  na- 
tions. The  j^tates  respectively  retained  the  power  of  appointing 
prize  tribunals,  to  take  oognizar»ce  of  these  matters  in  the  first 
, instance;  and  thus  thirteen  distinct  jurisdictions  wore  vstab- 
'liahed,  which  acted  entirely  independent  of  each  other;  It  is 
true  that  the  Articles  of  Confederation  hod  delegated  to  the  gen- 
cral  governnicnt  tlie  authority  of  establisliing courts  for  reooiviog 
and  determining,  linally,  appeikls  in  all  cases  of  captures.  CoD> 
gress  accordingly  instituted  proper  appellate  tribunals,  to  which 
the  State  courts  were  subordinate,  and,  upon  constitutional  prin- 


CH.  TT.] 


THIS   PRRAMBLB. 


ftST 


cipIeA,  were  bound  t<t  yield  obedience.  But  it  is  notoriown,  chat 
the  cjeciflions  of  th«  appeUnte  tribunnln  wem  diaregsiniedi  niid 
treated  aa  mere  nullitips,  for  no  power  to  enforce  thorn  wait  lodged 
in  Congress.  They  operated,  therefore,  merely  by  moral  infln- 
enoe  and  requisition,  and  aa  auch,  noon  aank  into  inHignifinanco. 
Neutral  individuals,  as  well  as  neutral  nations,  were  left  wholly 
without  any  adequate  redress  for  the  most  inexcusable  injustice, 
dud  the  eonfvdcra(.-y  stihjoeted  to  imniiuciit  hazards.  And  until 
the  Constitution  of  tho  United  States  was  established,  no  remedy 
was  ever  effectually  adininislerod.'  ^Treaties,  too,  were  formed 
by  CoMji^ss  with  various  mitious;  and  above  all,  the  treaty  of 
peace  of  1789,  which  gave  complete  stability  to  our  indcpcndeuec 
against  Great  Britain.  Th^^e  treaties  were,  by  the  theory  of  tlie 
ooofederation,  aliaolutely  obligatory  upon  all  the  ^tati.^8.  Vet 
Iflieir  provisions  were  notoriously  nolated  botb  by  State  Icgrisla- 
Hon  and  State  judicial  tribunals.  The  QoQ-fulfihnent  of  the 
stipulations  of  the  British  treaty  on  our  part  more  than  once 
threatened  to  involve  the  whole  country  again  in  war.)  And  the 
provision  in  that  treaty  for  the  payment  of  British  debts  waa 
praetically  disrc-garded  in  many,  if  not  in  all,  tlic  State  courts. 
Those  debts  never  were  enforced  until  the  Constitution  gave  them 
a  direct  and  adequate  sanction,  independently  of  State  legisla- 
tion and  State  courts.' 

§  486.  Besides  the  debta  due  tA  foreigners,  and  the  obliga- 
tions to  pay  the  same,  the  public  debt  of  the  United  States  was 
left  utterly  unprovided  for ;  and  the  ofllcers  and  soldiers  of  tlie 
Revolution,  who  had  achieved  our  indoi)e»dencc,  were,  as  we 
have  had  occasion  to  notice,  8nfrore>d  to  langiiish  in  want,  and 
their  just  demands  evaded,  or  passed  by  with  indifference.^  No 
efficient  system  to  pay  the  public  creditor*  was  ever  carriea  into 
o]>cration  tintil  the  Constitution  wai  adapted;  and,  notwith- 
standing the  increase  of  the  public  debt,  occasioned  by  interme- 
diate wars,  it  is  now  on  the  very  eve  of  a  total  cxtiuguiBtuuent. 

1  fl«a  tlie  ruolvM  uf  Caogtmt,  Je«iMb«f  1770.  ^  SA  ;  Pantullov  «.  Doanr,  3  IWI. 
SI  ;  Jtnninp  r.  Canoo,  4  Cranob.  i ;  Qualiotm  r.-Orpt^»,  !  Dall.  <I9,  4(4. 

«  Sm  1  Wih'*  St«t«  Pkpora,  33S  I«  8S8  i  Ware  v.  HjHoo.  S  Dall.  B.  IM :  Ho^ 
kin*  c  Bell,  S  Crmck,  4H  ;  S  Wibon'a  Wwk*,  380  ;  ChkMlB  k  G«arga,  S  D^ 
41P,  474. 

*  5  U^hall-v  Ufa  of  WMUigton.  oil.  I,  pp.  40  to  40;  9  Pitk.  HEu.  180  to 
183  :  Jonroal  of  Omgnm,  17SS,  p.  191 4f  Mf-  i  <  VilHB'i  Varki,  t» ;  4  KlUoi'i 
DafafttM,  84. 


868 


coN'STiTnnoN  OP  Tar.  ukitkd  htxtes.         [boos  m. 


g  487.  Theie  eviln,  whatever  might  be  their  magnitnde,  did 
not  create  so  universal  a  distreaa,  or  fui  much  private  diflcontcut, 
US  others  of  a  mora  domestic  aatare,  which  were  subversiTe  of 
the  fintt  princnplea  of  justice.  Independent  of  the  tmju&tiBabte 
preferenceR,  wliicb  wore  fostered  in  taxar  of  citizens  of  the  State 
OTer  tiioew!  lielongiog  to  other  State's,  whiuh  were  not  (cw  nor 
Blighty  there  were  certain  calamities  inllicted  by  the  common 
eottTBo  of  legislation  in  most  of  the  States,  which  vent  to  the 
prostration  of  all  public  faith  and  all  pri\'ate  cnMliL  Laws  were 
constantly  made  by  the  State  legislatures  violating,  with  more 
or  loss  degrees  of  aggravation,  the  aacredncas  of  private  con- 
tractu. Laws  compelling  the  receipt  of  a  depreciated  and  depre- 
ciating paper  currency  in  payment  of  debts  were  generally,  if  not 
onirersally,  preralent  Laws  authorizing  the  payment  of  debts 
by  instalments,  at  periods  differing  entirely  from  the  original 
terms  of  the  contract;  laws  susi^nding,  for  a  limited  or  nncortain 
period,  the  remedies  to  reco%-er  debts  in  the  ordinary  course  of 
IcjjbI  proceedings;  laws  authorizing  the  delivery  of  any  sort 
of  property,  however  ttnproductivo  or  undesirable,  in  jmymcnt  of 
debts  upon  an  arbitrary  or  friendly  appraisement;  laws  shutting 
up  the  courts  for  certain  periods  and  under  certain  circumstaocea, 
~  were  not  inf re(|ucnt  u])on  tho  statute-books  of  many  of  the 
Htntea  now  eompuxing  tlie  Uuion.  In  ihc  niar  of  all  thcae  came 
the  systems  of  general  insolvent  laws,  schqo  of  which  were  of  a 
permanent  nature,  and  others  again  wore  adopted  upon  the  spur 
of  the  occasion,  like  a  sort  of  gaol  delivery  under  the  Lords'  acts 
in  Snglnnd,  which  had  ao  few  guards  against  frauds  of  every  kind 
by  the  debtor,  that  in  practice  they  amounted  to  an  absolute  dis- 
charge  from  any  debt,  without  aiiylbing  mure  than  a  nominal 
dividend;  and  aometimcs  even  this  vain  mockery  was  dispenwd 
with.  ■  In  short,  by  the  operations  of  paper  currency,  tender  laws, 
instalment  laws,  suspension  laws,  appraisement  laws,  and  iiisoU 
vent  laws,  contrived  with  all  the  dexterous  ingenuity  of  men 
(^pressed  by  debt,  and  popidar  by  llie  very  extent  of  private 
cmbarraasmcnta,  the  States  were  almost  nniTcrsally  plimged  into 
a  ruinous  poverty,  distrust,  debility,  and  indifference  to  justice. 
The  local  tribunals  were  bound  to  obey  the  legislative  will ;  and 
in  the  few  instancea  in  which  it  was  resisted,  the  independence 

>  S<«  CImmv  J.,  in  Wan  *.  JI>ll<w.  8  DkU.  ISS. 


en.  n.] 


THE  PBEAHnLB. 


809 


ui  tlie  judges  iras  sacrificed  to  the  temper  of  the  timfift.'  It  is 
veil  known,  tliat  Sbays^e  rebellion  in  MaMacbiuiettA  to<dc  ito 
origin  frmii  tliis  sourcv.  The  object  was  to  proetratc  the  regular 
adiDiniittratiuu  uf  justice  by  a  system  of  terror,  which  should 
present  the  rcoorcry  of  iloUii  and  taxcs.^ 

§  '188.  llic  Ffilcrulist  spcuks  on  Ibis  sabject  with  uniuiiial 
einpl)M>«.  "Tho  loss  which  America  has  sustained  from  the 
pestilent  effects  of  pupcr-moncy  on  tho  necessary  conltdonce  be- 
tween man  and  man,  on  the  neocHsary  con0duiice  in  tho  public 
councils,  on  tho  indnstry  and  moruU  of  tho  |>iwple.  and  on  the 
cJiaracter  of  republican  goTemment,  eonfltittitCB  an  enornioiu  debt 
against  the  Stales,  chargeable  with  this  unadyiscd  mea»iire, 
which  must  l<Hit;  remain  unsatislied ;  or  rather  an  accumulation 
of  guilt,  nhicli  can  be  expiated  no  oUierwiM  than  by  a  voluntary 
sacrifice  on  tho  altar  of  jostico  of  tho  power  which  haa  been  the 
instrument  of  it"'  /"Laws  impniring  Uio  oblitration  of  contracts 
Bre  contrary  to  the  first  priuciplM  of  the  social  cumjHict,  and  to 
CTory  principle  of  sound  legislation."*  And  the  Federalist  dwells 
on  the  sui.'(n-stiun,  that  as  Much  laws  ftmount  to  ui  aggression  on 
the  rights  uf  tliL^  citij!i'us  uf  those  States,  whose  oEtlxeos  are  in- 
jured by  them,  they  must  necessarily  form  a  probable  source  (tf 
hofltilitira  among  tlio  States.  Connecticut  retaliated  in  an  ex- 
emplary manner  up<jn  euormilifs  of  this  sort,  which  she  thuuglit 
bad  been  perpetrated  by  a  neighlraring  State  upon  the  just  rights 
of  her  ciliiceiis.  Indeed,  war  cumttitiilcs  almost  the  only  remedy 
to  chastise  atrocious  breaches  of  moral  obligations  and  social 
justice  in  rwipeet  to  debts  and  other  contracts.' 

I  48%    So,  that  we  see  completely  demonsttrated  by  our  own 


>  TbcoMnf  Tr«T«tl«.  WMdm,  in  ITOfl,  ia  Rlioiln  Itluil.  Uui  iBiUncaorihtewtl 
whklt  iitii  fuiiit  ui<l  illudntss  UiP  lett,  thoug^i  itvruuM  MtbdUHculItailnvolhan 
ENwSlotea  of  lugDr  cxtcat.  Tbg  jiulgaila  tint  caw  <l«cidad  that  aU*  making  P*P^- 
nraoey  a  IoiuIm  in  piijmmt  of  dabu  vac  nno«utttatMa«l,  and  agaiart  tbt  principLgi  nt 
U^pM  Cluui^  TlxirwnweMBpalbd  toafipMrtMAmllialcgHktiinlAnailkateUieiii' 
«dlT«i  i  aad  (Im  next  jT*t  (1k4u||  liumut  aiunullf )  tlwjr  wen  left  out  of  eOc*  lot  iio«a- 
Uokiag  tba  Isgitlalivc  pcnvr.  (sj 

*  AManUiriUroorWaihii^bm,  lU,  11S,««.:  S  Pitk.  BbL  114  ;  Utnot'a  H«> 
toiy  0f  Iha  luiuTrctioa  la  MMMcliniotta. 

•  Tlic  FfdenlUt,  X<k  U.  *  14.  •  Id.  So.  7. 

[a]  Sc«  lUi  ease  and  nioUicT  one  In  Ohio,  nttmd  to  In  Cookj'i  CouUtutloul 
Umlutionii,  ISO,  a. 

voui — m 


870 


cossnTunos  or  the  ujhted  state3.        [dook  m. 


history  the  importance  of  a  morfi  effectual  cBtablisbmcnt  of  jiw- 
tlce  under  the  auspicvs  of  a  national  ^vcrnmcnt.* 

§  490.  The  next  clniisi'  in  the  preaniblc  i»  to  'linBiiri'  ^loincsfie 
tranquillity)"  The  iUuBtrationii  apprupriatv  to  ihia  hmd  hai-c 
been  in  a  g^t  measure  anticipated  in  our  prerioiw  olMen'atioiiA. 
f  The  Dccurity  of  the  f>tat<!  a^ainnt  foreign  influence,  domestic  dia- 
ftCnsioD«,  coniniei'cial  rivalriea,  legislative  retaliation!!,  territo- 
rial dlspiitefi,  and  the  petty  irritationa  of  a  border  warfare  for 
priv[leuT^«,  exnmptinna,  and  cimiiggling,  has  been  already  no- 
ttced.'  The  very  habits  of  intercourse  to  which  the  States  were 
accustomed  with  each  other  during  their  colonial  state,  would, 
aa  has  been  jnatty  remarked,  fpvc  a  keener  edge  to  every  discon- 
tent excited  by  any  inequalities,  preferences,  or  exclusions,  grow- 
ing out  of  the  public  policy  of  any  of  them,*  These,  howewr, 
are  not  the  only  evils.  In  small  commimities  domestic  factions 
may  well  l>e  expected  to  arise,  which,  when  huuest.  may  lead  to  the 
most  pcmieious  [mblic  measures;  and  whua  corrupt,  to  domestic 

>  Ute  ienMJ%>  of  Kr.  ChM  ivMet  Jay  to  ChbbolB  ».  0«argte  (S  D>IL  B-  419, 
4T<)  illiutntc  thd  ttatb  of  thoae  itMCwinp  in  an  intomti^g  muistr.  "  Frioc  u>  the 
itXt,"  MJ1  be,  "oT  tiw  Coiiatttat)aii,t)ie  pnph  had  n«t  uiir  nitioOBt  Uibmn]  towUch 
Qwj  oonU  mon  Cm  jnitkn ;  th«  dUtrihatloii  of  jiutko  VM  Uwn  cantavd  to  SlaU  Jndl- 
e«lsti««^  in  whon  iiMlltuUan  Hid  orgaalnllan  th*  p«o|>le  of  tht  athw  Stain  bad  na 

'  pftiopatiea,  ud  ovw  vhom  thej  had  aot  Mm  UnA  coatroL  Than  wm  tbrn  no 
gUHfil  oosrt  of  qip«1kt«  jvrudktioa,  bjr  whom  tlw  tnwt  ef  fiuti  cenitiv  aSectUg 
•ItW  Uw  Mllon  M  lw|i  «t  At  cttlna*  ot  taij  oiiur  StaU^  ooaU  tm  nrtanl  wd 
tmmstiA.  Etch  Scata  wta  eUlgid  to  aoquican  to  Uw  mmma*  of  JuMia  whldi  ■■»• 
otkr  Stats  night  jritM  to  her  or  to  bet  oUioM  i  ud  that  eran  in  eaica  iTh«n  Sum 

'  eouUaiadon*  wan  not  dwajB  farambU  to  the  bm(  asaet  nicamn.  Tkrrc  «u  dancer 
tltkt  t*am  thii  MntM  aninuMtica  voold  in  tima  naslt ;  and  ni  the  tnuulioD  frooi  *nl- 
■DcalliM  to  tiMlilltUa  WM  fr«iMnt  in  tba  bitfotj  of  indcfaadint  lUtni,  a  oonaMfi 
tribanal  for  Ihe  imntoattoa  of  oontmnniM  bocamo  dadnttlt,  Horn  pMitei  both  of 
Justice  and  of  polk  j. 

"  Prior  »1m  to  tiMt  pttiod.  tlio  IFnitcd  StatM  had.  hf  taking  a  place  mo^  tba 
nation*  of  Iho  rarth,  bcconio  uncnaUe  to  the  lam  cf  Mtloni ;  and  It  urn  thtir  tot««al 
Bi  vtU  ••  tb<ir  dutjr  to  prarlde  that  thoac  lam  AonM  bo  IMpactod  and  ot«7«d.  ta 
Ibtir  natlooal  tfaanctor  and  eaparitf,  tiia  Unibnt  fttatat  ntn  ncponoiUB  to  fmlgn 
BMlonalortlieoaadDctaf  iathStatanlatintotlielBwaiif  Mllnnr  and  tha  parAwM- 

I  RK«  of  traun  i  8>d  Ihwv  tlw  tooipMUtncr  of  nfoniaK  all  awii  ^wmIoibi  (o  Siata 
Conrti^asdlwllcnUrlr  tothaoaot1>ofdctiaqw«t8tat«a.1i»canMai>pai*sL  Wbll' nil 
the  8tat«  were  bottod  to  pntert  tatb,  and  the  dtiaBu  of  each,  H  wm  Until;  |<*vp«'  awl 
nawniMe  that  tivtj  ibaald  be  to  a  oapacftj,  not  ooljr  to  caoHi  JnKko  l«  b«  liono  to 
aachaad  thodliwuBof  aadh  bat  abo  tomuBjii>ti«  tob*  dona  b;  oubaad  Uwott* 
•Miaof  fBck ;  and  that,  not  \rf  Ttolonoe  and  lom^  bnt  la  a  atatda^  (okta,  and  T<«alar 
dNtmofJu^dBlpraoedMa."  Sm aba  2  Onhaaca Htit.  Apfc.  4M,  tM. 
•  Tho  FodarJfat.  No^  «.  7.  II  i  U.  Jto.  7. 


CH.  VI.] 


THE  PREAMBLE. 


871 


ituuiTcctions,  and  even  to  an  overUirow  of  the  gorernmont.    The 
dangers  to  a  republican  government  from  tliis  source  have  been 
I  dwelt  upon  by  thp  advocate*  of  arbitrary  goveninient  with  much 
I  exultation;   and  it  must  be  oonfisBcd,  that  the  hifttorv  of   free 
[govemmontfl  haA  furnished  but  too  manyexamplca  tn  npoloj^izo 
for,  thoup^li  not  to  jiintify  thrir  arfrunienta,  drawn  not  ontj  against 
the  forma  of  repiiblicau  government,  bnt  againat  the  principle* 
of  civil  liberty.     They  have  pointed  out  the  brief  duration  of  re* 
publics,  tho  factions  by  which  they  have  been  rent,  and  the  nii»* 
cries  which  they  have  suffered   from  distracted  councils,   and 
time-serving  ]>oIicy,  and  jwpular  fury  and  corruption,  in  a  man- 
ner calculated  to  increase  the  solicitude  of  every  ivoU-wislicr  to 
the  cause  of   rational   liberty.     And  even  those  who  are  must 
favomble  in  their  viuws  seem  to  huvo  thought  that  tlti-  experience 
of  tJic  world  had  never  yet  furnished  any  conclusive  pnHrfs  in  its 
support'     We  know  but  too  well  that  factions  have  been  the 
'ipecial  growth  of  republics.     By  a  faction,  we  arc  to  understand 
a  number  of  citizens,  whetlier  amounting  to  a  minority  or  a  ma- 
jority of  the  whole,  who  are  united  by  aomo  common  impulse  of 
fpasaion,  or  interest,  or  party,  adverae  to  the  rights  of  the  other 
citizens,  or  to  tlio  penuonent  nnd  aggregate  intcrcsta  of  the 
commimity.' 

§  4111.  The  latent  causes  of  faction  seem  sown  in  the  nature  of 
nan.  A  seal  for  diGTereot  opinions  concerning  religion  and  gov> 
vnunent,  and  many  other  i>oin(«,  )>oth  of  speculation  nnd  prac* 
tic«;  an  attachment  to  different  leaders;  mutual  rivalries  and 
animosities;  the  restlessness  of  ambition;  the  pride  of  opinion; 
tJie  dcftire  for  popular  favor,  commonly  sugiply  a  ready  origin  to 
factions.  And  where  deejier  causes  are  not  at  work,  the  most 
trivial  diffei-cnces,  and  the  most  accidental  circumstances  occa- 
I  sionally  excite  tlie  most  severe  conflicts.  But  the  most  durable 
as  well  as  tJie  most  alarming  form  in  which  faction  has  dis- 
played itself  has  grown  out  of  the  unequal  distribution  of  prop- 
erty. Those  who  liavo  and  those  who  have  not  projierty  have, 
and  must  forever  have,  distinct  interests  in  society.  The  rela- 
tion of  debtor  and  creditor,  at  all  times  delicate,  sometimes  as- 
sumes  a  slinpo  winch  threatens  the  overtlirow  of  the  government 
itself.* 
§  492.    There  are  hut  two  methods  of  curing  tlio  mischiefs  of 

>  The  Ftd«nU>t,  Ifo.  9.  *  Id.  N«.  10.  ■  [d.  N«i  10, 


872 


CONSTITDTIOK  OP  TUB  tlKITBD  STATES.  [BOOK  HI. 


(juitiun:  the  one,  by  remurinj;  ita  causes,  vbicb,  in  a  free  gov- 
unitoeotf  U  impractioible  without  the  dctitruvtion  of  liberty;  the 
other,  by  cunlrallinR  iIh  cffM.-tiiJ  If  u  fuctiun  be  a  minurity,  the 
najurity  may  apply  the  projwr  corrective,  by  defeating  or  check- 
ing tho  violcnco  of  thu  minority  la  the  regular  ccuno  of  lo- 
RiHlktion.  In  Binnll  Ktute«,  huwe^-cr,  this  is  not  always  easily 
attninnblo:,  from  ihv  difliculty  of  combining  in  a  permanent  form 
Kufiicient  intlueuoc  fur  ttiis  ])urp080.  A  feeble  dumealic  faction 
will  naturally  avail  itself,  not  only  of  all  accidentitl  causes  of 
ditMiilidfaotion  nt  liome,  but  also  of  all  foreign  aid  and  intlueiuw 
to  carry  its  projects.  And,  ind<.>«d,  in  tho  gradual  ojierations  of 
factions,  80  many  combinationR  are  formed  and  diHfioIred,  so 
many  jirivato  resentnicnts  t)econto  embodied  in  public  measures, 
and  HHcccsa  and  triumph  so  often  follow  after  defeat^  that  the  rem- 
nants of  different  factions,  which  have  lia<I  a  brief  sway,  how- 
ever hostile  to  each  other,  ha\'e  an  interest  to  unite  in  order  to 
put  down  their  rivaU.  But  U  the  faction  be  a  majority,  and 
ttliLnd  tmoheckcd,  except  by  its  own  sensi'  of  duty,  or  its  own 
fears,  the  dangers  arc  imminent  to  all  tlijee  whoso  principles,  . 
or  interesta,  or  characters  stand  in  tho  way  of  their  supreme  / 
duniiiiioit.*  ' 

§  493.  These  evils  arc  felt  In  great  states;  but  it  bos  been 
justly  ob«errcd  that  In  small  state*  they  are  far  more  a^r^ravated, 
bitu-r,  cruel,  and  permaneut.  The  mo«t  efl'(s:tual  means  tu  con- 
trol such  effects  seem  to  be  in  the  formation  of  a  cuofederato 
rapuUiiN,  comnisting  of  Si'veral  stales.*  It  wilt  bo  rmr«,  ondcr 
sucli  oirvuuistances,  if  proftcr  powers  are  confided  to  tbe  genenl 
government,  Ihat  the  state  line  does  not  form  the  natural,  as  it 
will  tlio  juried iotional,  boundary  of  the  uj<cratii>us  of  factions. 
The  authority  of  the  general  go\-enm)ent  will  hare  a  natural  ten- 
dency tit  suppress  the  nolence  of  faction,  by  diminishing  the 
ehonees  of  ultimate  anoceas;  and  tbtt  example  of  the  nrichboring 
states,  who  will  nrelf,  at  tbe  aame  lime,  partake  <rf  the  same 
or  ba\-e  tba  same  cnuses  to  excite  them  into  aetion,  will 
if  it  does  not  vhoUr  diaaraa.  the  vlolenee  oC  the 
jyedaminaat  factiutt.' 

$  4M.   Obo  at  the  ontinazr  raolls  of  dtsonion  anm^  ari^ 
boring  atataa  is  the  neceaaitr  of  cnatiDg  and  kecftiof  op  \ 
^iaf  atmian.  and  other  instituiqna  anfiiTwablc  to  liber^. 


CB.  Tl.  j 


TBB  PUEaMBLB. 


873 


Immediate  dan^ra  from  nuddcn  inroadii  and  inraslonis  And  the 
|>er{>(!tual  jeolousieti  and  discordit  incident  to  thoir  Uical  {MMitiou, 
compel  them  to  resort  to  the  establinhtnont  of  armed  forces, 
eithor  disproportionate  to  their  means,  or  inadequate  for  their 
defence.  Either  altc-rnutiv<!  is  fraught  irith  public  mischiefs. 
If  they  do  not  possess  an  adoqnato  military  foroe  to  repel  inra- 
sitm,  thi-y  havo  no  swurity  against  agression  and  tnnult  If 
thi'y  pussvcs  an  adequate  military  force,  there  is  much  reason  to 
dread  that  it  may,  in  the  bands  of  aspiring  or  corrupt  men,  be- 
come the  nii-ana  of  their  subju^lion.^  There  is  no  other  refnge 
in  such  cases,  but  to  seek  an  alliance,  always  uneKgual,  and  to  be 
obtaiuod  only  by  important  concessions  to  some  powerful  nation, 
or  to  fonn  a  confederacy  with  other  states,  and  thus  to  secure 
the  co-openitiou  and  th«  terror  of  numbers.  Nothing  has  tto 
strong  a  tendency  to  suppress  hostile  cntvrprtscn  as  the  con* 
eeiuusni-ss  tliut  they  will  not  Im  easily  successful^  Nothing  is  so 
sure  to  produce  moderation  as  tlic  consciousness  tJiat  nwistonce 
will  steadily  maintain  the  dictates  of  justice.  Summary,  nay, 
eTcn  arbitrary,  authority  must  be  granted,  where  tJie  safety  of  a 
state  catmot  await  the  slow  measures  of  ordinary-  legislation  to 
prote<;t  it.  I  That  govemm^iiit  is,  tliorefore,  most  siife  in  its 
lilierties,  as  well  as  in  its  domestic  peace,  whoso  numbers  con* 
Btitute  a^reTentive  guard  agaiot  all  internal  as  well  as  external 
attacks.  J 

§  49^  Wc  now  proceed  to  the  next  clause  in  the  preamble, 
to  **  provide  for  the  common  defence. "  And  many  of  the  coniiid- 
erations  already  stated  apply  with  still  greater  force  under  this 
head.  One  of  the  sureat  means  of  preserving  peace  is  said  to  be, 
by  being  alwayn  prepared  lor  war.  But  a  slill  more  sure  means 
is  tiio  power  to  repel,  with  effect,  every  aggression.  That  power 
can  scarcely  be  attained  without  a  wide  extent  of  population,  and 
at  leant  a  moderate  extent  of  territor%-.  A  country  which  is  largO 
in  its  limits,  even  if  thinly  peopled,  is  not  easily  subductL  Its 
variety  of  soil  and  climate,  Its  natural  and  urtifteint  defences, 
nay,  its  very  poverty  and  scantiness  of  supplies,  make  it  difficult 
to  gain  or  to  secure  a  permanent  cumjucst  It  is  far  easier  to 
overrun,  than  to  subdue  it  Armies  must  be  divided,  distant 
IKMts  must  he  maintuined,  and  channels  of  supplies  kept  con- 
stantly open.      But  where  the  territory  is  not  only  large,  hut 


874 


ooNsrrruTioH  op  the  DxriEo  states.        [book  m. 


populotu,  pGmumi-nt  conquest  can  rarely  occurJ  iinlcM  (which  id 
not  our  case)  there  arc  very  powerful  nuiKhbors  on  every  side, 
liaviiif;  a  common  intorrst  to  ussiiit  vnt'lt  uthor,  and  to  »iil)jugnt« 
their  enemy.  It  itt  fur  othcnriittt,  where  there  are  muuy  rival 
and  independent  atatea,  Iiaving  no  common  union  of  j^vemment 
or  intcro8l8.  They  arc  hiilf  8iilKlued  hy  their  own  diitwnsinita, 
jcalousieis  nnd  reiteulnienta  before  the  conflict  is  begun.  They 
are  caaiiy  ninde  to  act  a  part  in  the  (le:stntctioR  of  each  other, 
or  easily  fail  a  prey  for  want  of  proper  concert  and  energy  of 
operatinns. 

§  4li<!.  Uesides,  the  resonrres  of  a  confederacy  must  bo  far 
greater  than  those  of  any  single  state  belonging  to  it,  bntli  for 
peace  and  war.  It  cnn  command  a  wider  range  of  revenue,  of 
military  power,  of  naval  arniaiuents,  and  of  productive  industry. 
It  is  mor^  independent  in  its  employments,  in  its  capacities,  and 
in  itft  influences.  In  the  present  state  of  the  world,  alfcw  great 
powers  poflsess  the  command  of  commerce,  both  on  land  and  at 
sea.  i^n  war,  tliey  trample  upon  the  rights  of  nculrnls  who  are 
fechid;  for  their  weakness  fumishcH  «»  excuiw  holli  fur  »ervili(y 
and  disdain.  In  [icaci.-,  Ihcy  cuutrol  the  pursuits  of  the  rvnt  of 
the  world,  and  force  their  trade  into  every  channel  by  the  activity 
of  their  cntcrpriHc,  their  cxtcuHivc  navi^tioii,  und  their  flourish- 
ing nuinufactures.  They  little  regard  the  complaints  of  those 
who  arc  subdivided  into  petty  states  with  varying  intcrcHts;  and 
mw  them  only  sa  instruments  to  annoy  or  check  the  enterprise 
of  each  other.  Such  states  are  not  formidable  in  peace  or  io 
war.  (To  secure  their  rights  and  maintain  their  indcpeodenee 
they  must  liccomo  a  confederated  nation,  and  spi^k  with  the  force 
of  nnnilHTs,  as  well  as  the  elwpicneo  of  truth.'  The  navy  or 
army  which  could  bo  muintained  by  any  single  State  in  the 
Union  would  be  scarcely  formidable  to  any  second-rate  |)ower  in 
Europe.  It  would  be  a  grievous  public  burden,  and  exhaust  tbe 
whole  rcaonrocs  of  the  State,  But  a  nary  or  army  for  all  the 
purposes  of  home  defence  or  protection  u|X)n  the  ocean  is  within 
the  comjiods  of  Uic  resources  of  the  general  government,  without 
any  scwre  exaction;  and  with  tlie  growing  Ktr\-iigili  uf  the 
Union  n)u»t  lie  at  once  more  safe  for  us,  and  more  fomiidabte  to 
foiviirn  nndnns.  The  meana,  thereiore,  to  [.r  " ".  '  i!  ,  ,ni- 
moti  defence  are  ample;  and  they  can  only  bt-  n  .  i   .nd 

I  Umi  FodnlM,  So.  11. 


CB.  VI.] 


TQB  PKEAHDUL 


m 


inaditiiiato  by  a  (U%-ision  uno»g  the  States,  and  a  want  of  nnitj 
of  oponil  iitiut.  I 

*  §  4»7.  W«  pMft,  la  the  next  plaw,  to  tJio  clanso  to  "promote 
the  ffi'iiornl  wolfarb."  Aiid  it  uuiy  bo  asknl,  aa  Ihe  State  gov- 
eninii-iili«  arc  fonnetl  for  tho  anntc  jiurpoau  by  tbc  people,  wbjr 

'  ghoitld  tliia  be  8«t  forth  as  a  peculiar  i>r  prominent  uj)ject  of  the 
Cnii»titutiiin  of  the  Uiiitcil  States?    To  audi  an  liiqiiiry  two  gen- 

■eral  answci^s  maybe  given.     Tho  States,  se)uintt«l}',  would  not 

tposseaa  the  mcami.  If  they  did  poesess  the  utenna,  tlicy  would 
not  posseHs  the  power  to  carry  the  appropriate  nieosurca  into 
operation. 

§  498.  First,  in  respect  to  meana.  It  i«  obvious,  tliat  from 
tlie  local  position  and  aiiut  of  aeveral  of  the  States,  they  must 
fc»«ver  posiiesa  but  a  moderate  revenue,  not  more  thai)  what  is 
indispenaaltle  for  their  own  wants,  and,  in  tho  stricteat  sense,  for 
domestic  iuiprovementa.  In  relation  to  otbers  more  favorabljr 
situated  for  commerce  and  navigation,  the  revenues  from  tasa- 
tion  may  be  larger;  but  the  main  reliance  must  be  placed  apOQ 
the  taxation  by  nmy  of  imposta  upon  importations-  Now,  it  ia 
obviout),  from  the  remarks  already  made,  that  no  peTmanent 
revenue  can  l>c  raised  from  this  source,  when  the  Stales  arc  scp* 
arated.  The  evasions  of  the  lau-s,  which  will  conntautly  laka 
place  from  the  rivalries  and  various  interests  of  the  noi^iboring 
Stdtcn;  the  farililies  afToi'ded  by  Uie  numorouA  harbors,  rivers, 
and  bays  which  indent  and  intersect  our  coasts;  the  strong  in- 
terodt  of  foreigners  to  promote  amuggling;  tlie  want  of  uniformity 
in  the  duties  laid  by  the  different  States;  tbe  means  of  inter* 
course  along  the  internal  territorial  botmdariea  of  the  commer- 

^eiat  Statea,  • —  Ihene,  an<l  many  other  causes,  would  inevitably 
to  a  very  feeble  atlministration  of  any  local  revenue  system, 
and  would  make  ita  returns  moderate  and  uusatiafactery.  AVbat 
could  New  York  du  witb  a  sinjile  se»|iort,  surrouudi-d  un  each 
aide  by  jealous  maritime  nciithburs  with  numerous  ports  ?  What 
could  Msaasi-husetts  or  Connecticut  do  with  the  intenncdiato 
territor>'  of  Rhode  Island  rinminfi;  into  tho  heart  of  tJic  States  by 
water  communications  adniirnbly  adapted  for  Ihe  security  of 
illicit  trade?  What  could  Maryland  or  Virginia  do  with  the 
brottd  Chesafioake  between  thorn  with  tla  thousand  landing- 
places?     What  could  Pennsylvania  oppose  to  the  keen  rcaent* 

>  TiM  FMrnlifl,  No*.  S(,  ». 


876 


CONSTITUTIOH  OP  THE  tTNlTEO  STATES.  [BOOK  HI- 


ments  or  the  facile  polio;  of  bcr  weaker  nei]i:hbor,  Delaware  ? 
What  could  any  single  State  on  the  Mi»ai»8ippi  do  to  force  a 
ateadf  trade  for  itaelf  with  adequate  ))rote<:ting  duties?  In 
abort,  turn  to  whichever  part  of  the  continent  w«  may,  the  iliffi- 
cultiea  of  maintaining  an  adequate  aystem  of  revenue  would  be 
inaurmountuble,  and  tho  cxpcuaeii  of  collcctiug  it  enormous. 
Alter  Bomc  fc-w  atruKgles  for  uniformity,  and  co-operaliou  for 
□iiitual  Huppurt,  etich  i^tute  would  sink  t>ack  into  UkiIims  iiidiffer- 
ence  or  gloomy  deapondoucy,  atid  rely,  priucipolly,  u|>un  direct 
taxation  for  its  ordinary  supplies. '  The  oxperienoc  of  the  few 
ycara  «iic4;eeding  the  peace  of  1T&3  fully  justifies  the  worst 
approhenaions  on  this  head. 

§  499.  On  the  other  hand,  a  general  government,  clu(lK-d  with 
suitable  authority  over  all  th«  States,  eouM  wiaily  guard  iho 
whole  Atlantic  coaat,  and  mako  it  the  interest  of  alt  bouorablo 
merchants  to  assist  in  a  regular  and  punctilious  jiaymeut  of 
duties.  Vessels  arriving  at  different  porta  oi  the  Union  would 
rarely  choose  to  expose  thcmaclvca  to  the  perils  of  eeiutre,  not 
in  a  iiingle  Statu  only,  but  in  evury  State  into  which  tbe  goods 
might  be  succuttsivciy  imported.  The  dangers  u]>on  tho  coast^ 
from  tho  vigilant  operations  of  tho  revenue  oiTicem  and  revenue 
vnacis,  would  be  great ;  and  they  would  be  much  enhanced  by 
tho  cxpciutca  of  concealment  after  the  gooda  wei-o  landed.'  And 
the  bict  has  corresponded  with  tlie  theor)'.  Since  the  establish- 
mcntof  the  mitional  govermueut,  tbere  haa  been  comparatively 
little  smuggling  on  our  coasts;  and  the  revenue  from  the  duties 
upon  importations  has  steadily  increased  with  the  development 
of  tbe  other  resources  of  the  country. 

g  500.    And  this  leads  us  to  remark,  in  tbe  next  place,  that 

tbe  cstaldiahment  of  a  general  govorunicnt  is  not  only  bi'iiericial, 

as  a  source  of  revenue,  but  as  a  means  of  economy  in  its  colleo- 

Uon,  distribution,  and  oxpenditura     Insitead  of  a  large  civil  list 

(or  each  StJite,   which  shall  bo  compet^tnt  of  itself  to  diacharge 

all  tho  functions  applicable  to  a  sovereign  nation,  a  compara- 

.tivoly  amall  one  (or  the  whole  nation  will  auITic4>  to  ciin-y  Inin 

'  effect  its  powers,  and  to  receive  and  disburse  its  roTcnm-s.     Bo- 

aidea  the  economy  in  the  ciWl  department,  wo  have  already  seen 

how  mueh   less  acliml   oxi)enHitures  will  be  ni-cewwiiry  for  tbo 

,  military  and  navul  dcpurtnieuts,  for  the  security  of  all  the  States, 

I  Tb  P«d«n}l«t,  No.  la.  ■  Tbt  FadonlUI,  No.  13. 


OB.  TI.3 


THK  PREASIBLB. 


877 


than  vmild  be  if  ench  were  compelled  to  maintain  at  rII  po!nt« 
iu  iixlc^ioiiOvnt  sovervigntj'.  No  fortiricalJoiis,  no  commaudlng 
posts,  no  naval  flotilla,  will  be  nocessarj  to  gttard  tlie  8tat«8 
against  ea<:h  other;  nnr  any  oorp»  nf  nfTic^ni  to  |>rotect  tbc  froQ- 
tiere  of  each  againnt  inraaion  or  xmugi^ting.  The  exterior  boun- 
darjr  of  the  whole  Union  will  be  that  alone  which  will  require  to 
bp  protected  at  the  national  <?X|iriiBP, '  Iteaidea,  there  will  boa 
imifurmit}'  of  oporatiuas  luid  arrangementa  upon  all  subjects  of 
tlie  common  welfare  under  the  guidance  of  a  single  head,  instead 
of  multifarious  and  often  conHicting  urstenis  hv  diiitinct  States. 

§  601.  But  if  the  means  were  completely  within  the  roach  of 
the  several  States,  it  is  obvious  that  the  jurindictioa  would  be 
wantiu);  to  earn,-  into  effect  any  Rreat  or  comprehensive  plan  tor 
the  wolfsrv  of  the  vrtutle,  The  idea  of  a  permanent  an^  7.caloua 
eo-operalioa  of  thirteen  (and  now  of  t«-enty-four)  distinct  gov- 
ernments in  any  schento  for  thf?  common  welfare,  is  of  itself  a 
visionary  notion.  In  the  fimt  place,  laying  aside  nil  local  jeal- 
ousies and  accidental  jars,  there  is  no  plan  for  tlic  benefit  of  the 
whole  which  would  not  bear  unequally  upon  some  tiarlicular 
parts.  Is  it  a  regulation  of  commerce  or  mutual  intercourse 
which  is  proposed  T  Who  docs  not  see  that  the  agricultural,  the 
manufacturing,  and  the  navigating  States  may  have  a  real  Dr 
suppofie<l  difference  of  interest  in  its  adoption?  If  a  system  of 
regulations.,  on  the  otlier  hand,  Is  preiMrt-d  by  a  general  govern- 
ment, the  inequalities  of  one  part  may,  and  ordinarily  will, 
under  the  ^lidance  of  wise  councils,  correct  and  ameliomte 
those  of  another.  Tlie  necessity  of  a  sacriBce  of  one  fur  the 
benefit  of  all  nmy  not,  and  probably  will  not  be  felt  at  the  mo- 
ment by  the  State  culled  u{>on  to  make  it  Hut  in  a  general  gov- 
ernment, representing  the  interoats  of  all,  tlie  ancriflce,  though 
ftrst  oppueed,  will,  in  the  end,  l>e  fotmd  adequately  recompensed 
by  other  substnutinl  good.  Agriculture,  comnicrcp,  nianufac* 
turcs,  may  each  in  turn  be  compelled  to  yield  soiiiething  of  their 
peculiar  benefits,  and  yet,  on  the  whole,  l>e  atill  each  a  gainer  by 
the  general  ayst^^m.  Thn  very  power  of  thus  redressing  the  evils, 
felt  by  each  in  ita  intercourse  with  foreign  nations,  by  prohibit- 
ory regulatioiui  or  cmmten'ailing  duties,  may  socure  [icrmanent 
privilegeft  of  an  incalculable  ^■alue.'  And  the  fact  has  bei-n  as 
theoretical  reaaoning  would  lead  us  to  suppose.     The  navigation 

>  Th«  r*il«t>Ufl,  Hat.  IS,  It,  *  Th*  FcdcnliX,  No.  11. 


878 


coNsnTtmoK  op  the  united  5TATSS.        [book  m. 


commerce,  llie  agriciiltore  (ind  iitanufnctures,  of  all  Iho 
CB  ttnt'c  received  aji  advnnceniciit  in  every  dircclioa  hj  the 
union,  wliicb  lias  far  exccodeil  the  most  saogaine  expectation  of 
its  wai-meat  friendi). 

§  502.  But  tlie  fact  atone  of  an  unlimited  interconrse,  without 
duty  or  restriction,  between  all  the  States,  ia  of  itself  a  blerain^ 
of  almost  inconccivablo  value  It  makes  it  an  object  witli  each 
permanently  to  look  to  the  interests  of  ull,  and  to  withdraw  its 
operations  from  the  narrow  sphorc  of  its  own  cxelusivv  territory. 
Witlioiit  eiitcrintf  hero  into  the  inquiry,  how  far  the  )^-ni>ral  gor- 
ernint-nt  puesiiiiu.'s  Hiq  power  to  make  or  aid  the  making  uf  roads, 
canals,  and  otlior  general  improvomeul«,  which  will  pn>]>er]y 
urlw  in  uur  futiiro  didctissionis  it  is  clear,  iJiat  if  there  were  no 
gfindral  Ku^emtneiit,  the  ititerottt  of  i.'ach  State  to  undertake  or 
to  [H<omote  in  its  own  legislation  any  such  project  would  be  far 
Imui  strou*;  llian  it  now  is;  since  there  would  ))c  no  ocrtainiy  ns 
to  the  value  or  duration  of  such  iuiprovcnienl^  looking  beyond 
tho  boundnrics  of  tlic  State.  The  conscioiisne«a  that  the  union 
lit  the  Slatf^  is  ;>erninuent,  and  will  not  be  broken  up  by  rival' 
ric«  or  conllicis  of  policy,  — that  caprice  or  resentment  will  not 
divert  any  State  from  its  proper  duties,  aa  a  member  of  the 
Union, — will  give  a  solid  character  to  all  iniprr)venient«.  In* 
de))endent  of  the  exercise  of  ajiy  authority  by  the  general  gOT> 
ernment  for  this  purpose,  it  was  juRtly  foreseen  that  roads  would 
be  everywhere  shortened  and  kept  in  better  order;  accommoda- 
tions for  traveller  would  i*o  multiplied  and  an>elinrattHl ;  an  in- 
terior navigation  on  our  eastern  side  would  be  opened  throu^:hoat 
tlw  whole  extent  of  our  coast;  and,  by  canals  and  improventenia 
in  river  uaviintion,  a  bouudloss  field  opened  to  enterprise  ami 
oniigralion,  to  commoroe  aud  products  through  the  interior 
Statess  to  lht»  btrthest  limits  of  our  weatem  terriloriea. ' 

§  503.  raflsing  (rum  these  general  considerationa  to  thoM  of 
a  direct  praetieal  uatore,  let  us  see  bow  far  certain  inisiwin. 
eoufcsscdly  proiautivo  of  the  general  weUu«,  haw  been,  or  would 
ha,  affected  by  a  disunion  of  the  State*.  Take,  fur  exampht,  tbs 
post-uffioo  establi^uuout,  the  benefits  of  which  out  acareelr  be 
too  strongly  staled  in  r«s|iect  to  the  pablio  intetvsta  or  to  prirate 
ogoveui'^ucf.  With  wh^  wonderful  faiulity  it  bow  WNoanini* 
G«tes  intelliiii-ncet,   and  tranamils  orders  and  directioiia,    and 

■  TbihdMtlKKAli. 


CB.  TI.] 


TUB  PBEAHBLE. 


879 


money  and  nppotiable  paper,  to  every  extremity  of  the  Union. 
The  goviTiimi-ni  in  i-nablt-d  (o  givu  the  must  )>rotDpt  notico  of  ap- 
proachinf;  dangBrts  of  Jin  oumniAndis  il8  wishvs,  its  interesta,  its 
duticK,  its  l»wK,  uiid  its  jHiIicj'  to  the  mo«l  dti«l»iit  funclionaries 
with  iuoi-vdilde  s|Ki-d.  Coini>nre  tliis  with  the  old  course  of 
pri^'at«  poflta  and  special  exjireHscs.  Look  to  the  «st«iuiivo  ad- 
Tootagcft  tu  trade,  navigation,  nitd  oommeroe,  to  agrictilture  and 
lataufocturcs,  in  tJie  ready  dintributioii  of  news,  ul  kiiowtvdgc 
of  marltet«  and  of  tran^ftvrs  of  funds,  independent  of  tlie  itieflti- 
Riabl«  bletwings  of  commuiiication  liotwcen  distant  frieiidft,  to  re- 
lieve tJie  beaH  from  itH  oppressive  anxieties.  In  our  colonial 
state  it  took  almost  m  long  a  period  of  time  to  convey  a  letter 
(independent  of  the  inaccurity  and  uncertainty  of  its  transmis- 
sion) from  Philndel|ihia  to  Boston,  ns  it  now  takes  to  pass  from 
the  seat  nf  government  to  the  fartbcKt  limila  of  any  of  tJie  States. 
Even  iindei'  the  confrderation,  from  the  want  of  efficient  funds 
and  an  efficient  government,  the  poet  moved  on  with  a  lardy  in- 
dilTerenee  and  delay,  which  made  it  alniottt  iiaelesa.  We  now 
oommiinioate  with  England  and  the  continent  of  Europe,  within 
periods  not  essentially  different  from  thnse  which  were  then  con- 
smne^l  in  passing  from  the  centre  to  the  eastern  and  southern 
limits  of  the  Uninn.  ^uppow  the  national  government  were  now 
dissolved,  how  difficult  would  it  bo  to  get  the  twenty-four  States 
to  agree  upon  any  uniform  Hvatem  of  operstinns,  or  proper  appor- 
tioiiitient  of  the  postage  to  be  paid  on  the  transmiafiion  of  the 
mail.  Hach  State  roust  act  contiuuulty  byn  separate  Icgitilalion ; 
and  the  least  change  by  any  one  would  disturb  the  harmony  of 
the  whole  system.  It  is  not  at  all  improbable  that  before  a  single 
letter  could  reach  New  Orleans  from  EastjKirt.,  it  would  have  to 
pay  a  distinct  postage  in  sixteen  independent  States,  subject  to 
no  common  control  or  appointment  of  ofGoers.  Tho  very  state- 
ment of  such  a  case  amounts  to  a  positive  pnjhibition  upon  any 
extensive  internal  intercourse  by  the  mail,  as  t\va  burdens  and 
tho  insecurity  uf  the  establishment  would  render  it  intolerable. 
With  what  admirable  ease  and  expedition,  and  uoiseli'sa  uni- 
funnity  uf  movement,  is  tho  whole  now  accomplished  through  the 
inslnimentaiity  of  the  national  government! 

$  504.  Let  us  take  anotlicr  example,  drawn  from  the  perils  of 
nangntion,  and  ask  ourselves  how  it  would  be  [lossible,  wiUiout 
an  efficient  national  government,  to  provide  adequately  for  tho 


CON'S-nTUTION  OP  THK  UNITED  BTATB^  [SOOK  in. 


erection  and  anpport  of  lightliouscs,  monuments,  bttoys,  iind 
other  guards  against  shipnTwk.  Many  ul  these  arc  maintained 
at  an  expoiifio  wholly  disproportionate  to  their  advantage  to  tlie 
Statt-  in  which  thi-y  arc  xituutc  Many  of  tlicm  ncvRr  would  be 
maintaini-c],  (.'.wept  for  the  provident  forecast  of  a  nntional  gov* 
emmcnt  intent  on  ihv  good  of  the  whole,  and  pouceaing  powers 
•dcquuto  to  secure  it.  The  same  considerations  apply  to  all 
measures  of  iuternnl  improvement,  eillier  to  navigTition  hj  re- 
moving obstructions  in  rivers  and  inlets,  or  by  erecting  fortifi- 
cations for  purposes  of  defence  and  to  guard  our  harbors  gainst 
the  inroads  of  enemies. 

§  605.  Independent  of  tbeae  means  of  promoting  the  general 
Wi-Ifare,  we  flliall  at  once  aec,  in  our  negotiations  witJi  foreign 
powers,  the  vast  HU[)eriority  of  a  nation  combining?  numlK.'rs  and 
reaources  over  States  of  small  extent  and  divided  by  different 
intercata.  If  we  are  to  negotiate  for  commercial  ()r  other  advan- 
tages, the  national  gavermuent  baa  more  authority  to  Hpeak,  as 
veil  as  more  power  to  influence,  than  can  belong  to  a  single 
Stale.  It  hue  mure  valuable  privileges  to  give  in  exchange,  and 
more  means  uf  making  tliouc  privileges  felt  by  prohibitions  or 
relaxations  of  its  commercial  legislation.  Is  money  wanted; 
liow  much  more  easy  and  cheap  to  borrow  upon  (he  faith  of  a  na- 
tion competent  to  pay,  than  uf  a  sini^le  State  of  fluctuating  pol- 
icy. Is  confidence  asked  fur  the  faithful  fulfilment  of  treaty 
stipulations;  how  much  mure  strung  the  guaranty  of  the  Union 
with  auituble  authorities,  than  any  pledge  of  an  individual  State. 
Is  a  currency  wanted  at  once  fixed  on  a  solid  basis,  aud  sustained 
by  adequate  sunetiuus  to  enlarge  public  or  private  credit;  hov 
nmch  mure  decisive  is  tho  legislation  of  the  Union,  tlian  of  a 
single  State  with  a  view  to  extent  or  uniformity  of  u]ieruliuns. 

§  506.  Thus  wc  sec  tliat  the  national  government,  suitably  or* 
ganized,  has  more  efficient  means  and  more  extensive  jurisdiction 
to  promote  the  general  welfare,  than  can  belong  to  any  single 
State  of  the  confederacy.  And  there  is  much  truth  in  the  sug- 
gestion that  it  will  generally  ho  direcU-d  by  a  more  enlightened 
policy,  a  more  liberal  justice,  and  more  cumpri-hensivo  wiitdum, 
in  the  application  of  ita  means  and  its  powers  to  their  appropri- 
ate end.  Generiilly  sjieaking,  it  will  bo  lietter  administered, 
because  it  will  command  higher  talents,  more  extensive  exjHri- 
ence,  more  practical  knowledge,  and  more  various  information 


CH.  VI.] 


THE  PREAXBLB. 


8S1 


of  th«  wonto  of  the  wliole  coiumuait)-,  Uian  can  Iwlong  to  smaller 
BOcielio«.'  Tiic  wider  th«  sphere  of  action,  the  less  rt-auon  there 
li  to  presume  that  narrow  viewa  or  lociil  prcjudiem  will  prorail 
in  the  public  couuoila.  The  very  diventitieH  of  opinion  in  the 
different  representatives  of  distant  regious  will  have  a  tenttcncj, 
not  oiiiy  to  introduce  niutunl  concoxxioii  and  oonciliatioti,  but  to 
elevate  the  |xili<-y  and  iustntct  the  judgment  of  tJiuse  who  arc  to 
direct  the  public  mcouiiireft. 

§  507.  llie  liuit  clau»e  in  the  preamble  is  to  *^ secure  tJic  bless- 
ings of  liberty  to  oureelvcs  and  our  posterity."  And  surely  do 
object  could  I>c  more  worthy  of  the  wisdom  and  ambition  of  the 
beet  men  in  any  age.  If  there  1>e  anything  which  may  justly 
challenge  the  admiration  of  all  mankind,  it  is  that  Hublime  pa< 
triotiem  which,  looking  beyond  its  own  timp.t  and  its  own  fleet- 
ing  pursuits,  aima  to  secure  the  permanent  bappinetis  of  posterity 
by  laying  Uic  broad  foundations  of  government  ui>on  immova- 
bio  principles  of  justice.  Our  affections,  indeed,  may  natm-ally 
be  presumed  to  outlive  the  brief  limits  of  our  own  lives,  and  to 
ropoflo  with  deep  sensibility  upon  our  own  immediate  deacend- 
anta.  But  there  is  a  noble  disinterestedness  in  that  forecast 
which  disregards  present  objections  for  tlie  sake  of  all  mankind, 
and  erects  structures  to  protect,  supjiort,  and  bless  the  most  dis- 
tant gcnersliuna.  lie  who  fwmds  a  hospital,  a  college,  or  even 
a  more  private  and  limited  charity,  is  justly  esteemed  a  l>enofac- 
tor  of  the  human  race.  Dow  much  more  do  they  dcacrvo  our 
reverence  and  praise,  whose  lives  are  devoted  to  the  formation  of 
institutions  which,  when  they  and  their  children  are  mingled  in 
the  common  dust,  may  continue  to  cherish  the  principles  and  the 
practice  of  liberty  in  perpetual  freshness  and  vigor! 

§  508.  The  grand  design  of  the  State  governments  is,  doubt- 
less, to  accomplish  this  important  piu-po»e;  and  there  can  be  no 
doubt  that  tbey  are,  when  well  administered,  well  adapted  to  the 
cod.  But  the  question  is  not  so  much  whether  Lhcy  conduce  to 
the  preservation  of  the  blessings  of  liberty,  as  wheUicr  they  of 
tliemselvra  fumiah  a  complete  and  satisfactory  security.  If  the 
remarks  whicli  have  been  already  offered  are  founded  in  soimd 
reasoning  and  human  oxpericucc,  they  establish  the  position  that 
the  State  governments,  p^r  le,  arc  incompetent  and  inadequate 
to  furnish  such  guards  and  guaranties  as  a  free  ]>eoplc  have  a 

>  TIm  FxUralla,  Vo.  27. 


382 


coKSTrrunoN  or  the  dxited  stxtts.        [wok  nii 


righfc  to  require  for  the  maiiit«natic«  of  their  i-ital  interests,  and 
CB)>eci8lly  of  their  liberty.  The  inquirj  then  naturally  pn>8«ut8 
itself  whether  the  eftLaiili»hment  of  a  nntional  govemoieot  will 
olToni  more  eftectual  and  adequate  Becuritict. 

$  &09.  I'he  fact  haa  been  already  adverted  to  that  when  the 
OoiUtitntion  waa  before  the  [)eoplR  fur  adoption,  it  naa  genernlly 
represented  by  its  opponents  that  ita  obvious  tendency  to  «  con- 
sohdation  of  the  powers  oE  government  would  aubvert  the  State 
aovereignties,  and  thus  prove  dangerous  to  the  liberties  of  the 
people.'  This  indeed  was  a  topic  dwelt  on  with  peculiar  em> 
phaaia;  and  it  produced  so  general  sn  alarm  and  terror  that  it 
came  very  nigh  occomplishiiig  the  rojoction  erf  the  Gonstitiition.' 
And  yet  the  reasuQio^  by  which  it  waa  8up|K>rted  was  so  va^e 
and  unsatisfactory,  and  the  re^isoning  on  the  other  side  was  so 
cogent  and  just,  that  it  iocnu  difTieult  to  conceive  how,  at  that 
time  or  at  any  later  time  (for  it  has  often  been  resorted  to  for 
the  same  purpose),  the  sugj^-sliou  ouuld  have  bud  any  substantial 
intlucneo  up<Mi  the  public  opinion. 

I  510.  Let  us  glance  at  a  few  considerations  (some  of  which 
have  been  nlrendy  hinted  nt)  whieh  are  calculated  to  suppress  all 
alann  upon  this  subject.  In  the  first  place,  the  government  of 
the  United  Htates  is  one  of  limited  powcrit,  IcAving  all  residuary 
general  powers  iu  the  State  governments,  or  in  the  iwople  Iticreof. 
The  jurisdiction  of  the  general  government  is  confined  to  a  few 
enumerated  objects  whii-h  concern  the  common  welfare  of  all  the 
States.  Ilie  State  governments  have  a  full  snjierintendence  and 
control  over  the  immense  mass  of  local  interests  of  their  re«pec> 
live  Statpfi,  which  connect  themselves  with  the  fcelingH,  the  affeo* 
tiooa,  the  municipal  institutions,  and  the  internal  arrangements 
td  the  whole  population.*  They  possess,  too,  the  immediate 
administration  of  justice  in  all  cases,  civil  and  criminal,  which 
concern  the  property,  personal  rights,  and  peaceful  punsuils  of 
their  own  citizens.  They  must  of  course  posaeas  a  large  share 
of  influence;  and,  being  independent  of  each  other,  will  have 
many  opportunities  to  interpose  checks,  as  well  as  to  combine  a 
common  resislaDoe  to  any  undue  exercise  of  power  by  the  gen- 
eral government,  independent  of  direct  force* 

•  1  Rltiof*  D«b>t«e,  378.  2SS.  SOT,  SS!,  S33  ;  9  Elliot'a  tlrht.ua,  V,  M,  136  ;  8 
EDk-l'l  t>*haiia,  S43,  S57,  294)  Tlio  F«d«nliW.  Wot.  S»,  IS,  17,  SI. 

*  IU  roUnUtt,  No.  17.  •  U.  Sot.  It,  IS.  *  Id.  No.  46. 


CH.  VI.] 


THE    PRKAHBLK. 


8«3 


§  511.  In  thi3  next  place,  Uip  ^tato  governnwnts  nrc,  hy  the 
ret?  Iheoiy  of  the  ConHtitution,  ORSontial  contit ituent  pnrtit  of  thv 
general  gnvemment  I'hey  can  exist  without  the  latler,  but 
the  latter  cannot  exist  urithout  them.  Witliout  the  intervention 
of  the  State  Icginlaturea,  the  President  of  the  United  States 
cannot  be  elected  at  nil ;  and  the  Senate  is  exclusively  and  ahso- 
Intely  under  the  choice  of  the  Stat«  lefrislaturea,  llie  Itejire- 
Bcntatives  are  chosen  by  the  people  of  the  Stutfs,  So  that  the 
txecntivo  and  legislatU'C  branohca  of  the  national  government 
depend  upon,  nnd  emanate  from  the  Stntes.  Everywht^ro  the 
Stale  novcreigiilius  arc  reprewnted ;  nud  the  national  sovereignty, 
as  8uch,  baa  uo  ropre«entntion.'  Hov  is  it  powiiblu  under  such 
circiimi^timros,  that  the  nnlioual  gnveromcnt  can  be  duti^-ruug 
to  (ho  libi-rties  of  the  people,  unless  the  StatOH,  uud  the  people 
of  the  States,  conspire  together  for  their  overthrow  ?  If 
there  nhotild  be  eticb  a  conspiracy,  is  not  this  more  justly  to 
bo  deemed  nn  act  of  the  states  through  their  own  Agents,  and 
by  their  own  choice,  rather  than  a  corrupt  usurpation  by  the 
general  government  ? 

§  •'>12.  Itesidet),  the  perpetnal  organization  of  the  State  gor> 
emments,  in  all  their  departments,  executive,  legislative,  and 
judicial;  their  natural  tendency  to  cooperate  in  cases  of  threat- 
ened danger  to  their  common  liberlica;  the  per|ietunlly  recurring 
right  of  the  elective  franchise,  at  short  intcrvalu,  —  mtist  pi-eacnt 
tlte  most  formidable  barriers  against  any  deli1>crate  usurpation, 
which  docs  not  arise  from  tho  hearty  co-operation  of  the  peoplo 
of  the  States.  And  when  such  a  general  co-opcraticm  for  usur- 
patioD  sliatl  exist,  it  is  obvious  that  neither  the  general  nor  the 
State  govern mcnt«  can  interpose  any  permanent  protection. 
Each  must  submit  to  that  public  will  which  created  and  may 
destroy  them. 

§  513.  Another  not  unimi>ortunt  consideration  is,  that  (ho 
powers  of  tbe  p'neral  govcminenl  will  lie,  and  indeed  must  Iks, 
principally  employed  npon  external  objects,  such  as  war,  peace, 
negotialinns  with  foreign  powera,  and  foreign  commerce.  In  its 
internal  operations  it  can  touch  but  few  objects,  except  to  intro- 
^duce  regulations  beneficial  to  the  ctMnmeroe,  internonrse,  and 
other  relations  between  Uie  States,  and  to  lay  taxes  for  the  com- 
mon good.     The  powers  of  the  States,  on  the  other  hand,  extend 

1  TlM  7«d«iaUm  So.  49. 


38i 


CONsnTDTIOH  OV  TUB  DKITED  STATES.  [DOOK  UI. 


to  «11  objoctd  which,  Id  the  ordioaiy  course  of  sffoira,  concera 
tho  livcH  and  lilicrtii.-8  and  property  of  the  people,  tuxl  tbo  iater- 
tiul  order,  improrciucot,  imd  jinMipcrity  of  the  St<it«.  Tlw  opi'r- 
atioiu  u(  the  geiicral  ^vcruiiiciit  will  lie  iiio«l  cxtoiigivu  oud 
iinporljint  iu  times  of  war  and  danger;  ttiose  of  the  Htato  gor- 
crninoiit^,  in  ti hips  of  i>encc  and  security.'  Ind<'pondent  of  all 
uUier  cons  idr- rut  ions,  the  fact  that  the  States  pofiAeas  a  concur- 
rent  power  of  taxation,  and  an  cxcluaJre  power  to  regulate  the 
descent,  deviac,  and  diAtribtition  of  estates  (a  power  the  most 
formidable  to  despotism,  and  tho  most  indispensable  in  its  right 
exercise  to  republicanism),  will  forever  give  them  an  influeoca 
which  will  be  lut  commanding  as,  with  reference  to  tlic  safe^  of 
the  Union,  they  could  deliberately  desire,' 

§  514.  Indeed,  the  couittunt  aiipii'heiisioa  of  some  of  the  most 
sincen;  patriots,  who  by  tlteir  wisdom  have  graced  our  country, 
has  been  of  on  op]KMlt«  character.  Tlicy  have  believed  Ihut 
the  Slates  would,  in  the  event,  prove  too  formidable  for  tbo 
Union;  tJial  the  tendcuoy  would  bo  to  anarchy  in  the  members, 
and  not  to  tyranny  in  the  head.'  Whetlier  their  fears,  in  thift 
respect,  were  not  of  iho»e  of  men  ulioee  judgmenld  weru  misled 
by  extreme  solicitude  for  the  welfare  of  their  country,  or  whetJier 
thoy  but  too  well  rend  the  fate  of  our  own  iu  the  history  of  utlier 
republics,  time,  (he  great  es])ounder  of  such  prublem»,  cjui  alone 
detenninc*  The  rcMoning  on  this  subject,  whidi  has  been  vitli 
so  miieli  profoundness  and  ability  advanced  by  the  Federalist, 

>  Tht  FfiknllK.  Xol  45.  •  Id.  N&  SI. 

*  IsJ.  Ku*.  17,  45,40,  n. 

*  U.  Turgot  a|ii<can  to  h»w  bn-n  rtroDi^  laipiuwtil  «{tb  tbf  diOcBlty  nT  ■rialrift' 
tng  ■  Mttomi  gavtniMent  nader  «ndi  drennwtasoes.  Im  bu  Ictttf  to  Dr.  Price  ht 
Mji :  "  In  Um  gdunl  mika  tt  the  Suih  I  do  sot  «tatm>  ■  ooftUtton,  a  fstloB  of  all 
ibt  fmiU  to  fonn  on*  hamagMMiu  body.  It  b  on);  »  Jemlilc  «f  CMnnusiiliM  loo  ilia- 
cenlHit,  anil  uAiM  conUim  » iwnlnnf  indMcy  bi  tif^ttum,  ««inf  U  tb«  dinnfly  In 
iMr  law*,  cuMoMt,  and  opinLsBi,  to  iht  lDei|inlity  of  lk«ir  pMaml  ftmifdi,  bvt  Mill 
■MM  Id  Uk  iMqnaItt]r  of  Uwu  adraneM  to  gir*t^  atnagtb.  It  m  oafj  •  copy  <t  ikt 
Dstdi  Kpntdk,  with  this  diSeKOoe,  tliat  iLb  Dutch  trfnUleliad  BOtUag  to  fgar.HlW 
AB«(kaB  RpwUic  lu«,  from  iSa  htura  poolM*  hicraMB  of  uxj  am  «f  tka  twoTftia*. 
AH  thli  edUoa  lifti  herik  kUtwrt*  NpfMtid  ttpon  ih*  inrnioat  tavottUm  of  the  idoa 
■notant  nd  nigut  ptley  •  tqum  Uh  la^faitiBa  th«t  oalioM  anl  AtK  aa  aodi,  nay 
kre  as  iatanrt  dktiMt  htm  tbo  ialMEOt  irUoh  Mitidoab  kn  U  b«  tim.  nd  datad 
thdr  ((ofartj  agaiaat  th*  attaok*  of  nUan  and  taatfuumw,"  Ac  SuniUr  viao* 
•m*  to  twn  aeni|ricd  the  mni  of  >di«tnfntJiri  AnMrieaa  gmlTimii.  vtn  p«iMia< 
a  pmphirt  is  \ns  tf<Ht.  WonMln);.  rnHiM  "Thevahta npea dv  PttUifad  BlwIiMi 
«t  tin  L'ntlMt  Slalai  of  Anwrin,"  te.,  ^  U,  Ac 


CD.  TI.] 


TUB  Pfl£AUBLB. 


885 


will,  in  the  mean  time,  dcsen-e  the  attention  of  every  conitiderate 
niMt  in  America.' 

§  515.  Hitherto  our  ox))criencc  hag  dcmonfitratcd  the  entire 
safety  of  tlie  Statoa,  under  the  beolgn  operations  of  iho  Conxtita- 
tinn.  K&ch  of  tb«.'  8tiitcii  htis  grown  in  power,  in  vigor  of  upora- 
tion,  in  commaDditiK  iniluoncc,  in  wealth,  levenno,  popiilalion, 
commerce,  ^riculttirc,  and  general  efficiency.  No  niiiii  will 
Tenturc  to  afiirm,  that  their  power,  relative  to  thnt  of  the  Union, 
has  been  diminished,  although  our  population  has  in  the  inter- 
mediate period  passed  from  three  to  more  than  twelve  millions. 
No  man  will  pretend  to  say,  that  the  affection  for  Uie  State  go?- 
cmmonte  has  1>een  senaibly  diminiiihed  by  the  operations  of  the 
general  government.  If  the  latter  has  bc^rome  more  deeply  an 
object  of  regard  and  reverence,  of  attachment  an<i  pride,  it  is 
bceanse  it  is  felt  to  i>o  the  parental  guardian  of  our  public  and 
private  rights,  and  the  natural  ally  of  all  the  .State  govpmmenta, 
in  the  adminlBiration  of  justice,  and  the  promotion  of  the  general 
prosperity.  It  is  beloved,  not  for  its  power,  but  for  its  bencli- 
oeneo;  not  bccauac  it  commuuda,  but  because  it  protects  j  not 
because  it  controls,  but  becauau  it  austains  the  common  interests, 
and  the  common  liberties,  and  the  common  riglils  of  the  people. 

§  516.  That  there  have  been  measures  adopted  by  the  general 
govermnent  which  have  not  met  with  universal  approlmtion, 
must  be  admitted.  But  was  not  this  difference  of  opinion  to  be 
expected?  Does  it  not  exist  In  relation  to  the  acta  of  the  State 
governments  ?  Must  it  not  exist  in  every  government,  formed  and 
directed  by  human  brings  of  difEcrent  talents,  characters,  pas- 
sions, virtues,  motives,  and  intelligence?  That  some  of  the 
ineuaurcs  of  the  gcDL-rnl  govomnicnt  have  been  deemed  usurpa- 
tions by  aouK'  of  the  Htutes  is  also  true.  But  it  is  equally  true, 
that  those  roeasum  were  deemed  constitutional  by  a  majority 
of  the  Statrs,  and  as  such  received  the  most  hearty  concurrence 
of  the  State  autborities.  It  is  also  tnie  Ibut  some  measures 
irh4Me  constitutionality  has  been  doubted  or  denied  by  some 
States  have,  at  other  times,  upon  re -ex  ami  nut  ion,  been  approved 
of  by  the  same  Klatea.  Not  a  single  measure  has  ever  induced 
tbr«eH]uarters  of  the  States  to  adopt  any  amendment  to  tlie  Con- 
stitution foimded  upon  the  notion  of  usuqiation.*    Wherever  an 

>  Th«  r^Unilitt,  tfo*.  Ai.  M,  II. 

*  If  lliiir*  hf  »tiy  cmqitiott.  it  it  the  dtcUui  m  to  th«  tuaUlily  «f  lh«  Statn.     But 
VOL.  t.  —  25 


3tW 


COXSTITUTrOll  OP  THE  CNITED  STATES.  [BOOK  III. 


amendment  hns  titkcn  |>1ace  it  haa  bccii  to  clear  n  wni  doubt,  or 
obnato  an  incoiivt>nieiion  eRtablisbed  \sy  our  cxpcHcnoc.  And 
tJiifl  Tery  power  of  amendment,  at  the  comiunnd  of  tlie  .States 
tliomaelvets  fonns  the  great  balance-wheel  of  onr  svstem,  and 
cnubloA  ua  flitontly  and  quietly  to  redress  all  irreg:ularitie»,  and 
to  put  donn  all  practical  oppressions.  A  iid  wliut  is  not  a  little 
remarkable  in  tlie  liiatorjr  of  the  govcrntnont,  is  that  two  meas- 
ures, which  stand  confessedly  t)]>oa  tho  extreme  limitH  of  consti- 
tutional authority,  and  earry  the  doctrine  of  coniitructive  power 
to  the  last  verge,  have  been  Immght  forward  by  those  who  were 
the  opponents  of  lh«  Constitution,  or  the  kiioH-n  advocates  for  its 
most  restricted  construction.  In  each  case,  however,  thoy  re- 
ceive*!  the  decided  i^npftort  of  a  Krt-at  majority  of  all  tlie  Stattw  of 
the  Union;  and  llio  coustitutiouulity  of  them  is  now  imiveisally 
acquiraced  in,  if  not  universally  aHirmcd.  We  alludo  to  the  uii- 
limitf^d  em}>argt>,  |>aj4sed  in  1807,  and  Or-  piircliuseand  admission 
of  Louisiana  luto  tlie  Union,  undt^-r  the  treaty  with  Prance  in 
1803.1  That  any  act  has  ever  been  done  by  the  general  govern- 
ment, which  even  a  majority  of  tiw  States  in  Ihi^  Union  have 
deemed  a  clear  and  gross  usurpation,  may  be  safely  denied.  On 
the  other  hand,  it  is  certain  tJiat  many  powers  p«jsitively  belong* 
ing  to  the  general  government  have  never  yet  bei>n  put  into  full 
operation.  So  that  the  influence  of  ^late  opinions  and  State 
jealousies  and  State  policy  may  be  clearly  traced  throughout  the 

«Teii  tUt  dMwvn  not  lb*  oaatr  of  luarfatioD,  for  Uia  c*m  hib  clcari;  viUiU  tbc  »at<li 
or  lbs  CiMutinitim. 

>  4  )niiot'«  DvUtoi.  £ST.  rraidmt  JtKtnm  bimaeU',  nador  wbow  nlrainittnitioB 
liMh  lh>'M  mnuure*  mn  [MMetl,  which  vcre.  tn  tbc  bigbett  maut,  hi*  own  mfiirui, 
wu  ilrljIitnittJy  of  npLnion  ihitt  Ui  tmendmcDl  of  tho  COMtltntiDn  wu  tnfrmuy  to 
■uliioriM  th«  f^miaal  gonniiiMat  to  Rilmil  LnubUna  inlo  Um  Paion.  Ytt  he  nnl5«l 
lh«  vpry  imt;  wbioh  •wuml  lhi«  right ;  ind  cunlinanl  Uw  hm  ulikh  jpna  U  dttct, 
4  JcITcnra'*  Carttp.  1,  3,  3.  A  num  pntioiUar  GOBahUnUuii  of  tbt«  mbjocu  wUl 
naturally  actia  in  tama  tMata  A\miudttia.i*) 


(o)  6m>  Cooke'a  Coastitiiliaiul  UisiOfT, 
pt^  in,  2>i.  Tbii  antboT,  alluding  to 
thH  Mi)iuiilioii,  uid  to  Ur.  Jcflmaa'ii 
oplBian  npoa  tb*  powor  t«  main  ft,  ium 
not  blkd  la  ranatk  Iht  iMdlaaa  et  vnwf 
iwrty  1b  ponr  to  sxckIm  pmur  xitlior- 
itj  tbui  thoy  wtin  willlnn  to  «oiK«k  that 
Iho  j^sTcrntiinit  (hmhimiI  «1i<ii  in  ib« 
haikl*  of  their  Dpponmt* ;  and  il  might 
thanca  t>*  anpii>d  that  tbe  ttsdeucy  to  a 


eeoitaot  acurtlton  iJ  bderal  antbtrity  wu 
lu  W  ta}itclnL,  if  nM  liwvhatiln.  Vtiut 
tbr  trmiH  '  ■  >'«il*r«1 "  aixl  "  K<t«tilican  " 
ta  tbflii  otigiDal  attar,  u  applM  to  Iboaa 
<Kim  sen  nNpeeliTelr  tor  a  libml  aMl  a 
•tiicCMiwtTiiFlioB  ol  Uw  powm  oT  pintli- 
niMit.  it  mifiht.  br  rooilirpiig  a  Hid*  Ur. 
J«ir«nDii'a  fuoniM  Dfihorlmn.  btMdil.  "Ovt 
of  |<ow«r,wtu«allR(piiblluuii{  lupewor, 
n  an  all  roUnOliU"    C. 


Cfi.  TI.]  THE  FBBAHBLB.  387 

operations  of  the  general  gorcmmcnt,  and  especially  in  the  ex- 
ercise of  the  legiBlative  powers.  This  furnishes  no  just  ground 
of  complaint  or  accuBation.  It  ig  right  that  it  should  be  bo. 
But  it  demonstrates  that  the  general  government  has  many  salu- 
tary checks  silently  at  work  to  control  its  movements ;  and  that 
experience  coincides  with  theory  in  establishing  that  it  is  calcu- 
lated to  secure  "the  blessinga  of  liberty  to  ourselves  and  our 
posterity. " 

§  517.  If,  upon  a  closer  survey  of  all  the  powers  given  by  the 
Constitution,  and  all  the  guards  upon  their  exercise,  we  shall 
perceive  still  stronger  inducements  to  fortify  this  conclusion, 
and  to  increase  our  coniidence  in  the  Constitution,  may  we  not 
justly  hope  that  every  honest  American  will  concur  in  the  dying 
expression  of  Father  Paul,  "  Esto  perpetua, "  may  it  be  perpetual^ 


8S8 


C0KST1TLTI0.N  OF  THE  UnTBD  BtATES.  [BOOK  HI. 


CHAPTER  VII 


DI9TRIDtm0M  OP  P0WE8& 


§  518.  Ik  surveying  the  g«n«ral  structure  of  the  Conatittition 
f4  tlte  United  Stutcs,  wo  aro  naturtlly  ted  to  on  examinatioa  of 
UM)  faQ<Iitmcnt»l  priuoiplcs  on  wliidi  it  Ja  ur^nizod  for  tJif^  pur- 
posa  of  cnrryiug  into  otToct  tlic  ob}c«t8  discloeod  in  the  prcumblc 
Every  goreminoni  mu8t  include  within  its  scopo,  nt  least  if  it  ]» 
to  poHsesB  snitalilc  ntaiiitity  and  ener^,  tlic  exurcixc  of  (he  tliree 
great  powers  ii)>on  whicli  all  governments  are  atipposied  to  r«st, 
namely,  the  executive,  tlie  legiiilative,  and  the  judicial  powers. 
The  manner  and  extent  in  which  these  powers  are  to  bo  exer- 
cised, and  the  functionaries  in  whom  they  ai'e  to  be  vested,  <XM- 
stltute  the  great  distinctions  which  are  known  in  the  forms  of 
government.  In  absolute  governments  tlio  whole  executive,  le- 
gislativu,  and  judicial  powem  are,  at  least  in  their  Una!  result, 
exclusively  confined  to  a  single  individual;  and  such  a  form  of 
govcnunent  is  denominated  a  dcspotiam,  as  the  whole  sovereignty 
of  the  sUitvs  is  vested  in  him.  If  the  same  powers  are  exclusively 
confided  to  a  few  {wrsons,  constituting  a  permanent  sovereign 
couneil,  the  government  may  be  upjiroprintcly  denominated  an 
absolute  or  despotic  aristocracy.  If  they  ore  exercised  by  the 
people  at  large  in  tliuir  original  sovereign  assemblie-s,  tbo  gov- 
ernment is  a  pure  and  nbsoluto  democracy.  But  it  is  mure  com- 
mon to  find  these  powers  divided,  and  separately  exercised  by 
independent  ftmctionaries,  the  executive  power  by  one  depart- 
ment, the  legislative  by  another,  and  tbo  judicial  by  a  third ;  and 
in  these  catM>«  the  government  is  properly  deemed  a  mixed  one; 
a  mixed  monarchy,  if  the  executive  power  ia  hcrt-dilary  in  u. 
single  person;  a  mixed  aristocracy,  if  it  is  beroditar>-  in  several 
cbieftainH  or  families;  and  a  mixed  d<.-mocracy  or  republic,  if  it 
is  delcgat'Ml  by  t-lcction,  and  is  not  hereditary.  Li  mixed  mon- 
archies and  aristocracies  some  of  the  functionaries  of  the  legisla- 
tive and  judicial  powers  are,  or  at  least  may  bo.  beroditary.  But 
in  a  reprc»entalive  republic  all  power  cmAu:tios  fmm  the  people, 
and  is  exercised  by  their  choice,  and  never  extends  beyond  tho 


CH.  m.] 


DISTBIBUnON  OP  POWEBS. 


889 


lives  ol  the  individuaU  to  whom  it  h  intnutted.  It  may  be 
intnwted  for  *njr  ghortur  pcriud ;  antl  tlion  it  returns  to  them 
lin,  to  1>«  agttin  dclegtttod  by  a  new  choice. 
§  511).  In  th«  ooareation  wlitch  framed  tlio  CouHtitutioa  of  the 
Uuitod  f^tAt«i«,  thfl  first  ri-«oluliun  udoptcd  by  thitt  body  vas,  that 
"a  national  governinent  ought  to  bo  establiflhcd,  consiitting  of  a 
auprfUM!  Ipgialativ*^,  judiciary,  and  executive"'  And  from  thi« 
fundamental  jirojionition  sprung  tlio  8uli)(«()UL-nt  urgnnizatioii  of 
the  whole  government  of  the  United  States.  It  is,  then,  our 
duty  to  examine  and  consider  the  grounds  on  which  this  proposi- 
tion rests,  since  it  lies  at  the  bottom  of  all  our  ini^titntions, 
[State  as  veil  as  national. 

$  620.  In  the  establishment  of  a  free  gnvemment,  the  division 
of  the  threo  great  powers  of  government,  the  exeentive,  the  le- 
gislative, and  the  judicial,  among  different  functionaries,  has 
Lbeen  a  fa\-orito  poliey  with  patriots  and  statesmen.  It  has  by 
'ttumj  beeu  docmi-d  a  maxim  of  vital  importance,  that  thefte 
powore  should  forever  be  kept  separate  and  distinct  And  accord- 
ingly we  find  it  laid  down  with  emphatic  care  in  the  bill  of  rights 
of  several  of  the  State  constitutions.  In  the  eonstitution  of  Muft- 
sachusetta,  for  example,  it  is  declared,  that  "  in  the  government 
of  this  onmnionwcalth,  the  legislative  department  shall  never 
exercise  the  executive  and  judicial  powers,  or  either  of  them; 
the  executive  shall  never  exercise  tho  legislative  and  judicial 
powers,  or  either  of  them ;  the  judicial  shall  never  exorciMi  tlu 
legislative  and  executive  powora,  or  either  of  them;  to  tho  end  it 
may  be  a  government  of  bttn  and  not  of  men."'  Other  dccla> 
rations  of  u  similar  character  arc  to  be  found  in  otlicr  HiaAe 
eonstitutious.' 
§  621.    Montesquieu  seems  to  have  been  the  first  wbo^  with  a 

t  JoanuUorCiHiTaittoo.  $i.  S3,  IStl  907,  SIS. 

■  Bill  of  Btglttt.  uticU  30. 

■  Tho  FedtlvUA.  Ko.  47.  It  bM  bten  rapoikol  by  &It.  J.  Admw,  tlwt  the  ptuti* 
CaUllty  or  il»  ituntlon  ct  »  npatilk.  In  whldi  then  U  ■  gennoT,  a  muU,  aod  ■ 
hoiMe  of  i*[>rnHBUiiTM,  In  dmU*d  faj  l^llsi,  tlinii(^  h«  almit*  Ik*  thMi;  U>  b* 
l*i»d«bl«.  CuiivU*  niUoiM*  M  ilrlm  |icqiiiliw,  «ut  priorai,  ani  MnRoIl  R)(aiit.  Dtkda 
n  bit  M  ooDfliluta  tvipnblia*  toimt  Hnitai  hdliua  ijuaiii  tnmtir^  *«l  »i  imDlt,  haui 
dJntoiM  oae  poMA.  T*idt.  Am.  bb^  14.  CkMVunrt*,  "Sutiio  wMOiXiiiiecoMtl- 
lataa  ntnpnMioun,  <iiia  ei  tilbaa  gtstribna  UU^  regiJi,  opttmok  et  p^fnkri,  modin 
OonftiB.*'  Cie.  Fra(.  lU  Itt^uh.  I  Aiikiii*  *  Amer.  Conclltusianc,  Pnbot,  19.  Th« 
Britlib  fovMnntrat  )i«^ip«  uiawan  motv  luuly  to  ibe  term  of  Rowmment  prapoMd 
If  tlMM  wriUr^  Uuw  vhaX  «•  U  BW-kn  limM  duMU  Mtam  arittij  a  npnbUe. 


CONBTlTtTTION  OP  THE  UNITED  STATES.  [BOOK  111. 

truly  phi loaophical  eye,  BUiTey<?d  tlie  political  truth  involved  in 
th)8  maxim  in  ita  full  ext«nl,  and  gav«  to  it  A  pnrumuunt  im- 
portauco  and  value.  As  it  is  tacitly  aHSumixl,  as  a  fundiuiicatal 
bo^ifl  in  the  Conittitution  of  tlic  United  States,  iu  the  diBtrihutioa 
(rf  it«  powers,  it  may  be  worth  inquiry,  what  is  the  tnie  uaturu, 
object^  and  extent  of  tbo  maxim,  and  of  the  reasoning  by  whieh 
it  is  supported.  The  remarkB  of  lifnnteftquieu  on  this  subject 
will  bo  found  in  a  professed  commentary  upon  the  constitution 
of  England.'  "When,'*  says  he,  "the  legislative  and  executive 
powers  are  united  in  the  same  person,  or  in  the  same  body  of 
magistrates,  there  can  lie  no  liberty,  because  apprehensions  may 
arise  leat  the  name  monarch  or  senate  should  enact  tyrannical 
laws,  or  execute  them  in  a  tyrannical  manner.  Again,  there  la 
no  liberty,  if  the  judiciary  power  be  not  separated  fmm  the  le- 
gislative and  executive.  Were  it  joined  with  the  legislative,  the 
life  and  liberty  of  the  subject  would  be  exposed  to  arbitrary  con- 
trol; for  the  judge  would  bo  the  legislator.  Were  it  joined  to 
the  executive  power,  the  judge  might  behave  with  riolence  and 
opprestiion.  There  would  be  un  cud  of  everything  were  the  same 
man,  or  the  same  body,  whether  of  th«  iiubles  or  of  the  people, 

'to  exorcise  these  three  powers,  that  of  enacting  laws,  that  of 
executing  tho  jiubtic  rcsolutioii«,  aud  of  trying  the  causes  of 
individuals."' 

§  522.  The  same  rcasoiiiog  is  adopted  by  Mr.  Justice  Black- 
stone,  in  Ilia  Comiuvutarie».'  "In  all  tyrannical  go^'emments," 
says  he,  "the  supreme  magistracy,  or  tho  right  both  of  making 
and  of  enforcing  luws.  is  vested  in  tlic  aamc  man,  or  one  and  the 
same  body  of  men;  and  wherever  tlicso  two  powers  are  united 

.together,  there  can  be  no  public  liberty.     The  mu^iiHtrate  may 

E«nact  tyniunical  lavs,  and  execute  them  in  a  tyraunieal  manner, 
since  he  is  pwutes.'MKl,  in  quality  of  disficnser  of  justice,  with  all 

tthe  power  whioh  he  a^  legislator  tliinks  pi-ojKrr  to  give  himself. 

^But  where  the  legislative  and  executive  authority  are  in  distinct 

>  UMtMquUu.  a  tl.  ch.  fl. 

*  H.  Tut;^  inn  tlin  following  ttrong  Unjia^ :  "  Ttii>  trntinr  of  Iha  |)ra|il*  U  llit 
IsMt  cracl  noil  iQtolonbk,  IxwaiiM  it  lam  tlie  fcvM  ntnunta  to  Un  upprCBj.  A 
dnpot  i*  mtnlnnl  bfa  Kime  «f  hu  tnm  tntcrat  He  ii  «tieclEc<t  by  maoavc  w  pnUie 
opioiai.  But  tWmiiIUt>iit«MTweikal«tA;  lb«  mnMtude  tn  nenr  rJin:k*il  bj  n- 
mosw.  Mid  will  ctuii  Mctflw  to  tlwotMlf  n  Uu  bl^iait  luMrr  wImd  Uiay  il«M<m  only 
dHfintat.*    Letter  to  Dr.  Priet. 

*  1  lUwk.  Comin.  IM. 


CU.  VIl.j 


DISTBIBCTION  OP   POWERS. 


bunds,  the  formi>r  will  take  care  not  to  intnii^t  the  latter  with 
80  laxftfi  a  [lower  oa  niay  t«niJ  to  tli«  subventinn  of  ita  own  intle- 
pcuiloiicc,  and  thcrowith  nf  the  lilwrtj-  of  the  sulijwf,"  Aj^ain: 
*^Iii  thi»  dieliuct  aud  separate  existence  of  the  judicial  power  in 
a  peciiliur  body  of  men,  nominated,  indeed,  by,  but  not  roraova- 
lilo  at,  till-  plcuHuro  of  the  cniwn,  consials  one  main  pn^wrviitiTO 
of  tlie  public  liberty;  which  cannot  long  aubitist  in  any  xtuie, 
unices  tlic  udminiatration  of  common  justice  lie  in  some  dcprM 
eejuirated  from  the  legislative  and  also  tliv  cxceutive  power. 
Were  it  joined  with  the  le^alative,  the  life,  liberty,  and  pro|>- 
erty  of  the  subject  would  be  in  tli«  bandu  of  arbitrary  judges, 
whose  dcct)(iuN«  would  then  be  rej^dated  only  by  tbcir  opiniuiiK, 
and  not  by  any  fundumentui  principles  of  luw;  wliioh.  tliooiili 
legislators  may  depart  frum,  yet  judjies  are  twund  to  olwene. 
Were  it  joined  with  the  executive,  this  union  might  soon  bo  on 
orerbslance  for  tJie  legislative. "  • 

>  1  BlKk.  Comm.  2d».  8m  1  Wtbon'*  Uw  LMtttio.  t»K  399.  (00,  M.  408,  iM  i 
VoodcMii'*  Elflia.  of  Jnricp.  £3,  M.  The  Ttmatk*  of  Dr.  Vmhy,  <m  Ihn  aiaw  nilijecl, 
•n  All]  cl  hli  imul  fFTRRlinl  ntiia*.  "  Tha  Gnt  niAxln,~  mj*  be,  "of  >  tna  »M»  li, 
that  lb«  Uw>  bn  m»i«  hy  one  tot  of  m«n  «iid  «ilininiit«T4<l  l>y  uiotlwr ;  in  otli»rii«vdik 
that  the  IcgidaliTo  mai  JniliruJ  diaracten  ba  kept  wpvmtv.  Whmi  ikn  oflcai  u«  i 
niiited  in  tb*  «ina  pwaen  araiMMiibljr,  particnUr  law>  aro  tnaile  lor  pnttUuUr  camm,  \ 
■p4ugbi|  often tinm  fnim  iiutinl  niativni,ani)<llnttodla  [wivaUcmliL  Whllat  tlir^ 
u«  krpl  wp«ral«,  wueral  linrn  mn  Rmrle  \>j  oD«  body  of  men,  williont  fomivinx  mliuB 
they  may  alTect :  and  when  tnadcv  tbty  mart  be  applied  by  titt  oChtT,  lei  tbcm  aSrvt  | 
■liom  tboy  wilL 

"For  the  Mike  of  HlMtntloD  1»I  tobf  mppoMil,  la  tlibconDtir,  •ithur  that,  Parlia* 
mcnta  hting  laiil  uUti.  tb«  OMrtt  of  Wealinlntter  Hall  mad*  their  own  lam ;  or,  that 
Ihc  (WO  baiUM  of  Parliamviil,  irith  the  king  nt  tlieir  linil.  trifd  and  4iicUed  onuM  at ' 
llirir  bar.    It  l«  »rid«nl,  in  the  fint  |ila»,  that  the  ilecUmn  at  auch  a  jBdicatnni  would 
ba  to  Many  law* ;  and,  in  the  aecoad  plan,  tlial.  wWa  the  putim  and  Ih*  tal>n«U  lo 
beafltctnlbylbeltin  wMekao«n,  tlietMliaatioDiof  tbciaw-niaktn  would  inevilaUy 
■ttatb  OM  one  ibk  or  tho  otbcc  ;  and  tliat  wbm  there  wtn  neither  any  lixcii  mle*  to' 
Kfukl*  llieir  delmninallam,  bar  any  auiwHnr  power  looestmlthdrpr»o*oliag*,tbf>» 
bcltnation  would  inlerfrre  with  Uie  iotrsnty  of  |<ul>lk  JiiMk*.    Tb*  tOttaaqMKa  <4  ] 
■rhkh  matt  be,  tbit  the  laluMta  of  nick  a  «anatit«tioa  w««hl  llt«  aither  wlthoal  aay 
BOBitiiil  Uw«,  t)ial  ii  without  any  known  pi»  ealaUiahoJ  raJca  ot  ■4)a<licatMn  what* 
ct*r  ;  or  nirivt  U<n>  Mada  for  particular  pfrmn,  and  putakiog  of  the  «antndictiaa* 
■ml  iniquity  of  tbe  mollvM  t»  whidi  they  rnrarl  tbrir  erictn. 

"ThiBw  ilai^n,  by  lb«  ditidon  oftbe  kf^hilive  «n>l  judrdal  functions  "*  in  Ihle 
eonntry  «Actnally  ptoviied  i^aaL  PurtiMiiDOl  knowi  not  the  imiiriiiiul*  n]>iin 
wbom  It*  aela  will  oficrate ;  It  ha*  no  eiaca  at  putlea  befon  it  i  no  prrrsi*  dad|pu  t« 
MtTo ;  (oatniunntly  It*  raaotntUnt  wfll  bn  aaiQtMtad  by  th*  cnniidantlnn  at  anivenal 
ellerts  and  Icnden-'iea.  wbicli  alwiyt  prndorv  iiapartlat  and  oonimonly  adrantaffeou* 
legolaliou.  VTbto  laws  ■»  made,  courta  <i<  jwtteCk  whatnrr  be  tlia  dbpinition  of  iIm 
judgo^  mnU  ftbidc  by  tlmn :  for  tli«  IcgidatirabMOgMoauarUytlMauprrBe  pnTcrof 


898 


COXSTITOTION   OK  THB  OKITBD  flTATEfl.  [bOOE  HI. 


§  523.  And  the  Federalist  baa  with  equal  point  and  brevity 
romarked,  that  "the  accumulatiun  of  all  powers,  le^slative,  ex- 
ecutive, and  ju<I)ciary,  in  thu  same  banda,  whether  of  one,  a  few, 
(HT  manr,  and  whether  hereditary,  self-appointed,  or  electire, 
may  be  justly  pronounced  the  v<:r}'  definition  of  tyranny." ' 

§  524.  The  Reueral  rcasuutug  by  nhicb  the  maxim  is  sup- 
ported, independently  of  the  jusl  weiglit  of  the  authority  in  its 
favor,  seems  entirely  satisfactory.  What  is  of  far  more  value 
than  any  more  rcasonio!;,  experience  baa  demonstrated  it  to  be 
founded  in  a  just  view  of  the  naluru  of  guvcrumcut,  and  the 
safety  and  liberty  of  th«  people.  And  It  is  no  small  commenda- 
tion of  the  Constilulion  of  the  Unit«d  Stat««,  that  iiiKt«ad  of 
adopting  a  new  theory,  it  has  placed  this  practical  trutli  as  tJio 
basis  of  its  orj^nization.  It  has  placed  the  Ifiipslativo,  execu- 
tive, and  judicial  ]H>wcrg  in  different  hands.     It  has,  as  we  stuiU 

th«  ■tat'.  Urn  Jndii-iH)  and  ertrj  olhec  power  1*  ueotuiUblo  to  that ;  kiul  ft  tantMt  b* 

'  douli(«<l  ihti  Uie  iwBuna  wbo  fvmmt  tbs  MVw*I)[n  ■iiUioiiiy  of  goTcramaiit  >iU  b* 

\  UmeiQVB  it  the  bm  vU«h  t)i«y  UipmulTM  fOMcKbt,  and  •uflScUnlly  jtsloua  vt  ttM 

UMtrnption  «f  diiptiuiitg  judicUlaad  U^cialatire  power  bf  any  oUiera."    ihJ«j'*Monl 

l^htlowph)-,  B.  «.  ch.  S. 

■  Th*  F<il(Ta}lM,  Xo.  47  ;  Id.  Ko.  22.     Soa  «ln  Oov.  n*ndo1|>h>  Lttter,  t  QUofs 

I'mb.  ISS 1  WooilMOD'a  Elmi.  of  Juru|i.  O,  S4.     Mr.  Jcl&noa,  xa  tii  NoM  on  Tlt- 

Iginia  (Jclfcnoit'i  Notm,  fi.  lUi),  bu  nprcuid  the  ttme  tratb  wilb  peculiar  farror  and 

i  fbtML     Spaikicgof  tboconatitution  of  goTernment  ofhia  oirn  States  bt  taya,  "  All  tba 

Kjwwan  of  fiiTariinwDt,  l^[ialatiTa,  encattva^  a»d  JndUlaiy,  icanlt  lo  tb*  Icgitlatira 

Ibodjr.    The  oanotutmUiig  tfa«a«  In  iba  aama  haada  ia  fnoiaalj  the  ik&nition  of  a 

1  dMpotia  g»nnniant>    ll  will  be  no  alkriaticm  (hot  Uimm  poven  will  be  cxercMd  bf  a 

I  ptormll^  <d  haada,  and  not  by  a  nn^  on*.     Ono  bundled  and  acranlj-thrat  deapota 

[  would  u)Tf  ly  b«  n  opprmaiTa  aa  one.     Let  thaw  who  doubt  It  tani  thait  cfia  oa  tba 

'  npaUie  or  Venice.    An  eleetlva  daapotlani  U  not  lb*  gDvernaienl  m  fought  Ua  \  bat 

ono  which  ibould  Dot  00I7  be  foumled  on  free  paindplea,  bot  ia  wUah  iba  powtra  of 

govcniincot  aha«hi  be  m  divided  and  balaooed  among  acreial  bodlaa  of  ina([l«traey,  aa 

■that  na  ona  oonld  tranaeaod  ihair  Itgal  liuita  without  bdag  affrclually  iJiwk«il  and  re 

[■ttalned  fcy  the  aOaen."    Y*t  Vli^nla  llrad  roIiuitaKly  DOilcr  tbia  oooiUtutiaa  mote 

than  Urty  ytm  (aee  2  Fitlua'a  Hilt.  SM,  SM,  SIM):  anil.  M>twitliata»dinB  tbia  aoaama 

warning  bjr  fan  own  faToril««UI«aa»Mi.  in  the  neent  terinon  <f  bar  old  cosatlnnloa 

and  tlie  fonnatieoi  of  a  new  o«a,  aho  baa  not  in  tbia  naprct  ehaaged  Uie  pe«et«  of  ilia 

goTenunmL    Tba  lq[labtun  ■till  nanalM  wlib  all  Ita  jeraat  poweia. 

No  panon.  boHeTer,  baa  eaamliiMi  ihia  whoW  aubjert  more  ptofcondly  and  with  moi* 
IllMtiatiana  ftoan  hialory  and  pulilical  philoaophr,  thaa  Mr.  John  Adona,  in  hia  ede- 
braiad  Dafanoa  of  tbe  Amerioan  ConalitatioM.  b  ilaaarrai  •  thorw^  poniaal  ^rf 
Vttrf  MaleamaB. 
UtltoD  waa  aa  open  advocate  for  eoneaatnitlnjt  all  powera,  lo^iakUie  and  eMentl**, 
lOBabody:  abd  hi)  opisioM,  a>  vnill  aa  iboa*  of  aonaa  othar  man  of  a  [diDoaopbiml 
,  an  anttdeatly  wild  wad  ntravicaBt  lo  pat  ua  npon  our  gvaid  a^unat  toe  nuch 
r  on  man  aatknltj,    8te1  Adinu'a  Dtf.  of  Aacr.  ConaL  3U  to  271. 


CB.  TO.] 


DISTRIBimoK   OP  POWraS. 


8d8 


entl}-  see,  made  tLeir  term  of  oflico  sad  their  on^izaticm 
diffen-ut;  and,  for  objects  of  pcrinaticQt  and  juiraniiHiut  impur- 
toncc,  has  given  to  the  judicial  depart mt-iil  a  ti^iiurc  of  office  dur- 
itig  good  lichavior,  while  it  has  limited  each  of  Uie  others  to  a 
term  of  jreara. 

§  62.>.    But  when  we  npeak  of  a  reparation  of  the  three  great 
departments  of  government,  and  maintain  that  that  sojiaration 
is  indispensable  to  public  libertjr,  wo  are  to  understand  this 
k  maxim  in  a  limited  sonae.     It  is  not  meant  to  affirm  that  they 
must  he  kept  wholly  and  entirely  separate  and  distinct,  and  hare 
no  conimnn  link  of  connection  or  dci>cndence,  the  one  upon  ttie 
other,  in  the  slightest  degree.     The  true  meaning  in,  that  the 
whole  power  of  one  of  these  departments  idioutd  not  be  exercised 
by  the  same  hands  whicli  pussese  the  whole  power  of  either  of 
the  other  departments ;  and  that  such  exercise  of  the  whole  would 
subvert   the   principles   of  a  free   cunstitutiun.     Thin  has  been 
shown  with  great  eleuniosA  and  accuracy  by  the  authors  of  the 
Fedcralisti    It  was  obviously  the  view  taken  of  the  subject  by 
Houtct<quicu  and  Blackstono    iu   their  comuicnturies;   fur   they 
were  each  speaking  with  approbation  ot  a  constitution  of  govern- 
ment, which  embraced  this  dirisioa  of  powers  in  a  geoeral  view; 
but  which,  at  the  same  time,  established  an  occasional  mixturo 
of  each  with  the  others,  and  a  mutual  dcpoudenoy  of  each  ujKm 
I  the  others.    The  slightest  examination  of  the  British  constitution 
vill  at  once  couviuoc  us  that  the  legislative,  cxceutiro,  and 
judiciat}*  departments  arc  by  no  means  totally  distinct  and  scpa* 
rate  from  eai^h  other.     The  executive  magistrate  (onus  an  into- 
I  ^1  part  of  the  legislature  department ;  for  Parliament  consists 
iof  the  kiiig^  lords,  and  commons ;  and  no  law  can  be  passed  ex* 
LMptby  the  assent  irf  the  king.     Indeed,  he  possesses  certain  prc- 
'rogatires,  such  as,  for  instance,  that  of  making  foreign  treaties, 
by  which  he  can,  to  a  limited  extent,  impart  to  them  a  legisla- 
tive force  and  0]>eration.     He  also  posaeasca  the  sole  appointing 
^'power  to  the  judicial  department,  though  the  judges,  when  once 
appointed,  are  not  subject  to  his  will,  or  power  of  remo\-al.     The 
House  of  Lords  also  constitutes  not  only  a  vital  and  indejiendcnt 
branch  of  tlic  Icgislatore,  but  is  also  a  great  constitutional  coun- 
cil of  the  executive  magistrate,  and  is,   in  the  last  resort,   Iho 
highest  appellate  judicial  tribunal.     Again,  the  other  branch  of 

>  Tlie  Fedtcaliit,  So.  i% 


891 


COXSTITITION  OF  THE   DMTKD  BTATIS.  [uOOK  IK. 


tbo  lfigi$tat»re,  the  Comnioiui,  pofuesR,  iu  some  sort,  a  portion 
of  tlie  executive  and  judicial  power,  in  exerciairiK  the  ]>uver  of 
acousntion  by  impeachment;  and  in  this  cusv,  aa  ulsu  iii  the  trial 
of  pecnt,  the  House  of  Lurd^  »H»  ax  a  grand  cuurt  of  triaU  for 
public  offences.  The  power*  of  llio  judiciary  department  are, 
indeed,  more  narrowly  eonfined  U>  llicir  own  projH>r  sphtire.  Yet 
Hiill  the  judgea  oceaaiunnll}'  aasiHt  in  the  deiibeniiiuna  of  the 
Iloune  of  Lords  by  giviu);  their  optniuiiB  upon  matters  of  law  re- 
ferred to  them  for  advice;  and  IhuA  they  may,  in  some  aorl,  be 
deemed  assossora  to  the  lords  in  their  legi»Iativc,  as  well  m 
judicial  wipacity.' 

§  526.  Mr.  Justice  BlacEcstonc  has  iUuutrated  the  advautogcs 
of  an  oceasiunal  mixture  of  the  le^nslative  and  executive  func- 
tions in  the  English  eunHtitution  iu  a  stnkiug  manner.  "It  is 
highly  nceesaary,"  saya  he,  *'for  prraerving  the  balniioo  of  tho 
const itutiun,  that  the  executive  )>ower  should  lie  a  branch,  thou^ 
not  thi;  wliule  of  iho  li-gislutive.  The  total  union  of  tlicm,  vo 
have  eecn,  would  be  productive  of  tyraimy.  The  total  disjunc- 
tion of  tboni,  for  the  jiroseiit,  would,  in  (he  end,  priHluoe  tlie  same 
cffecia  by  causing  that  union,  against  winch  it  s<^'enis  to  provide. 
The  legislative  would  soon  become  tyrannical  by  making  contia- 
ual  encroaehnif-nts,  and  gradually  assuming  to  itstdf  the  rights 
of  the  executive  power,  Ac.  To  hinder,  therefore,  any  such  cn- 
croachmenla,  the  king  ia,  himself,  a  part  of  the  Parliajnent ; 
and,  ag  this  is  tho  rpaaon  of  his  being  so^  very  properly,  therefore, 
the  share  of  legislation  which  the  constitution  huK  placed  in  Ute 
crown  consists  in  the  power  of  rfjtetinff,  rather  (lian  remhinff ; 
this  being  sufficient  to  answer  the  end  proposed.  For  wo  may 
apply  to  (be  royal  negative,  in  ttiis  instance,  what  Cicero  olMcrves 
of  the  negative  of  tho  Roman  tribunes,  that  the  crown  baa  not 
ony  power  of  doing  wrong,  but  merely  of  preventing  wrong  from 
being  done.  The  crou-n  cannot  begin  of  itself  any  alterations  in 
the  present  estnblislied  law;  but  it  may  approve  or  disapprove  of 
tlie  alterations  suggei«ted  and  consented  to  by  tho  two  houses."* 

§  527.  Xotwitlistanding  the  memorable  terms  in  which  this 
maxim  of  a  division  of  powers  is  incor|)orati.-d  into  thn  bills  uf 
rights  of  many  of  our  State  constitations,  the  same  mixture  will 
bo  found  provided  for,  and  indoc^l  required  in  the  aamc  aolemn 

■  Th*  FedonlUt,  ITo- «7  1  Da  Lolnt  «a  tl>t  EngUali  CeaOhotkiin,  B.  3,  elk  3. 
*  1  Bhell.  Cmbid.  IM. 


CH.  vn.] 


DISTMBimOX  OP  POWBUl 


895 


InBtninicuts  of  govcriiiDc-nf.  Tlitw,  fhc  ^T^mnr  nf  Ifassachu- 
Hctiti  exercises  A  pttrt  of  lliv  k-gmlatirc  power,  potuicHtiing  n  qtiuti- 
fied  negative  upon  all  laws.  Tbc  house  of  rcprcsentatireA  is  a 
gTBiti]  inqiicHi  for  arrtmntioti ;  and  lb«  m-iiatt-  is  a  high  court  for 
the  trial  of  iiitiM>achnieiilH.  Thu  guveriiur,  with  the  advice  of  the 
executive  council,  possesses  the  power  of  appaintmont  in  general; 
hut  th«  appointment  of  certain  ofFicen*  still  belooj^  to  the  Senate 
and  {louse  of  Kepreiwntative«.  On  the  otht-r  hand,  altliuup:b  the 
judicial  department  is  distinct  from  the  executive  and  lo^slative 
in  manv  rrapects,  either  hrauch  nmv  rwjuirc  tim  advict>  of  Ihe 
jud^>a,  iip<m  solemn  questions  of  law  referrw!  to  tliem.  The 
Bomo  general  divinion,  with  the  same  occasional  mixture,  laaj  be 
found  in  tlic  constitutions  of  other  States.  And  in  some  of  them 
the  deviations  from  the  strict  theorj-  are  quite  rcmariablc. 
Thus,  until  the  late  rcviition,  the  constitution  of  New  Vork  con- 
stituted the  governor,  Ihe  chancellor,  and  the  jud^res  of  the  Su- 
preme Court,  or  any  two  of  them  with  the  governor,  a  council  of 
revision,  which  possessed  a  qualified  negative  ii|H)n  all  laws  passed 
b;  the  Senate  and  Houscof  Representntives.  And,  now,  thecJian- 
cellor  and  Ihe  ju<lu«s  of  the  Supreme  Court  of  that  State  con- 
stitute, with  the  iN.'oiite,  n  court  of  im|ieaelimcut,  and  for  the 
correction  of  crrom.  In  New  Jcncy  Ihe  governor  is  appointed 
bjr  the  k-pisUture,  and  is  the  chancellor  and  ordinary,  or  surro- 
gate, a  memlxT  of  the  Supreme  Court  of  appeals,  and  president, 
with  a  costii^  rote,  of  one  of  the  branches  of  the  legislature. 
In  Virginia  the  great  mas*  of  the  ap)>ointing  power  is  vested  in 
the  legislature.  Indeed,  there  is  not  a  single  constitution  of  any 
Slate  in  the  Cnion,  which  docs  not  practically  embrace  sonie 
acknowledKinent  of  the  maxim,  and  at  the  same  time  some  ad- 
mixtuiv  of  powers  constituting  an  exception  to  it.'  (/i) 

§  528.  It  would  not,  perhaps,  be  thought  important  to  hare 
dwelt  on  U)is  subject,  if  originally  it  had  not  l)een  made  a  s[mv 
eial  ol>jection  to  the  Constitution  of  the  United  States,  that 
though)  it  professed  to  be  founded  upon  a  division  of  the  legisla- 
tive, executive,  and  judicial  departments,  yet  it  was  really 
chargeable  witJi  a  departure  from  the  doctrine  by  accumulating 
in  some  instances  the  different  powers  in  the  same  hands,  and 

■  The  PedmJiit,  Hon.  «T,  18. 
^)  Uttij  of  t^M*  thinp  •»  now  etbcf«iM 


COSSTITDTION   OP  TRB  DKtTED  STATES.  [BOOK  ni. 


br  »  mixture  of  them  in  others;  bo  that  it,  in  effect,  subverted 
the  maxim,  and  could  not  but  be  dangerous  to  the  public  liberty.* 
The  fact  must  be  admitted,  that  such  an  occasional  accumulation 
and  mixture  exint;  but  the  conclunion,  that  the  (tystcm  is  there- 
fore dangero&H  to  tlie  public  libertT,  is  wholly  ioadmUsiblo.  If 
the  objection  were  well  founded,  it  would  a{>ply  with  iMjual,  nod 
in  some  cases  with  far  greater,  force  to  moat  uf  our  State  coiuttj- 
tutiuns;  and  thus  the  people  would  be  proved  tbctr  own  worst 
ciicmieis  by  embodying  in  their  own  eouatitutions  the  means  of 
overthrowing  their  liberties. 

§  529.  lite  Kutliors  uf  the  Federalist  thought  (his  Mubjcct  a 
'matter  of  vaot  importanco,  and  accordingly  bestowed  u}>on  it  a 
jmost  elaborule  cummontury.  At  the  present  tiino  the  objection 
may  not  \xi  foil  r»  posticssing  much  practical  force,  since  experi- 
ence has  demomtlratcd  the  fallacy  of  the  Buggmtions  on  which  it 
vaa  founded.  But,  as  the  objection  may  be  revived,  and  as  a  per- 
fect separation  is  occasionally  found  supported  by  the  c^iniona 
of  ingenious  minds,  daizled  by  theory',  and  extravagantly  attached 
to  the  notion  ni  simplicity  in  government,  it  may  not  be  without 
use  to  recur  to  some  of  the  reasoning  by  which  those  illustrioua 
1  statesmen  who  formed  the  Constitution,  while  they  admitted  the 
general  ti'uth  of  the  maxim,  endeavored  to  prove  that  a  rigid 
adherence  to  it  in  all  cases  would  be  subversive  of  the  elBciency 
of  tlie  government,  and  result  in  the  destruction  of  the  public 
liliertiea  Tlio  proposition  which  they  ondortook  to  maintain 
was  this,  that  "  unless  thene  departments  be  so  far  connected  and 
blended  as  (o  give  to  each  a  const  itiitiunul  control  over  the 
others,  tho  degree  of  separation  which  the  maxim  requires,  as 
essential  to  a  free  govcnuncnt^  con  never  in  practice  bo  duly 
maintained,"* 

§  SSO.  It  is  proper  to  premise,  tliat  it  is  agreed  on  all  sides 
that  (he  {luwors  bulonging  tu  one  department  ought  not  to  he 
directly  and  cuiiiplotely  administered  by  eiUier  of  the  other  de- 
partments; and,  as  a  corollary,  tliol,  in  rcfervnoc  to  each  other, 
neither  of  them  onsht  to  jHift^etts,  directly  or  iiidinvtly,  au  owr- 
ruling  inHuenco  in  ttte  administration  of  their  rt^fi^etire  pow- 
ers.^ Power,  however,  is  of  an  encroaching  natorc^  and  it  ought 
to  be  effoctuolly  restrained  from  passing  the  limits  assigned  to 

>  1  Amer.  Jiiuruni,  £30,  Ut,  030 ;  Id.  S5S  j  3  Anttr.  Uoanm,  78,  7*. 
*  Tin  Fnlonlitt,  Ko.  48.  •  U. 


CH.  VII.] 


DignuBonoN  OP  poweu. 


897 


it  HariDg  separated  the  tlirco  grcut  departments  hj  a  brood 
line  front  each  othvr,  tho  difficult  task  remains  to  provide  some 
practical  ntcons  for  lite  security  of  each  against  the  meditated  or 
ocoasional  invasions  of  the  others.  Is  it  siiHicient  to  declare  on 
parduncut  in  tJic  Constitution,  tliat  each  idiull  remain,  and 
neither  shall  usurp  tbc  functiuiia  of  the  other?  No  one,  well 
read  in  history  in  frcaeral,  or  cren  in  our  own  histor>-  during  the 
period  of  the  exi)*Ioncc  of  our  State  constitutions,  will  plucc  much 
reliance  on  such  declarations.  In  tbc  first  place,  uieu  may  and 
will  dilTiir  Hit  to  the  nature  and  extent  of  the  proliihitioiL  Their 
wishe-t  and  their  interests,  the  preralence  of  faction,  an  apparent 
necessity,  or  a  predominant  popularity,  will  givo  a  atrong  bios 
to  lh<?ir  ju<)gTnenlit,  and  easily  sa^jsfy  thent  with  reasoninti  which 
has  but  a  plausible  coloring.  And  it  has  been  accordingly  found, 
that  the  theory  has  bent  under  the  occaaional  pressure,  as  well 
as  under  the  occasional  elasticity  of  public  opinion,  nnd  aa  well 
in  the  States,  as  in  the  general  government  under  tho  confcdera' 
tion.  UsurpaticHts  of  power  have  been  notoriously  assumed  by 
particular  dcpartmcntB  in  each ;  and  it  has  often  hap|)cncd  that 
these  very  usuqtations  have  received  popular  (avur  and  in- 
dulgence. ' 

§  631.  In  the  next  place,  in  order  to  prosorvo  in  full  vi)^r  the 
constj)ntional  barrier  between  each  department,  whou  tlii'y  are 
3\j  separated,  it  is  obviously  indispemuible  that  each  should 
equally,  and  in  the  same  deforce,  the  means  of  self-pro- 
tection. Xow,  in  ]N>int  of  theory,  this  would  bo  almost  imprac* 
'tioabte,  if  not  impossible;  and  in  point  of  fact,  it  is  well  known 
that  the  means  of  self-protection  in  the  different  departments 
are  imineasiirably  dinprojxjrtionate.  The  judiciary  is  incompar- 
ably the  wcuk(^-»l  of  either,  and  must  forever,  in  a  considerable 
measure,  be  subjected  to  Uie  legislative  power.  And  the  latter 
has,  and  must  linve,  n  controlling  influence  over  the  executive 
I>ower,  since  it  linlila  at  its  own  command  all  the  retwurwa  by 
which  a  chief  magistrate  could  make  himsolf  formidable.  It 
possesses  thy  power  over  the  punw  of  the  nation  und  the  property 
of  the  people.  It  can  grant  or  withhold  supplies ;  it  can  levy  or 
withdraw  tuxes ;  it  can  unnerve  the  power  of  the  sword  by  strik* 
ing  down  the  arm  which  wields  it. 

§  532.    Do  Lolntc  has  said  with  great  emphosis :  **  It  is,  with< 

>  TU  Ftdtnlbt,  Ko.  4a.    BMakaTlMP<>i<nlul,K«i.SS,tS. 


898 


COKSTITUTIOK  OP  THK  UKtTEO  STATES.  [BOOK  nl. 


out  dotibt,  ahfiolutely  necesfiar;  for  securing  the  cmuttittition  of  a 
state,  to  reHtrain  the  osccutive  power;  but  it  in  atill  more  neces- 
sary to  rratraiu  the  leirislative.  What  the  fornnT  can  onljrdo  by 
successive  BtcjM  (1  ini'SD,  Buhvt^rt  tJic  kus),  aiid  through  u  longer 
or  a  uhorttr  train  of  cutorpriseg,  the  latter  doea  in  a  moment 
As  its  bare  will  can  fpvv  bciu^  to  thi.'  taws,  so  its  bare  will  can 
also  Aiinihilutu  tbvm;  and  if  1  may  bo  permitted  the  cxpri'xsioit, 
the  legislative  power  can  ehangc  the  eonstitution,  as  God  created 
the  light  *  Li  order,  therefore,  to  insure  stability  to  the  consti- 
tution of  a  state,  it  is  indispensably  neci:8san>*  to  n^train  the 
le^slativc  authority.  But,  hero,  wo  must  obsen'o  a  diffcrenoo 
between  Uic  legislative  and  executive  power*.  The  latter  may 
I>e  confined,  and  is  even  more^  easily  so,  when  undivided.  TTio 
legialative^  on  the  contrary,  in  oi'der  to  ita  being  re»Crniued, 
should  absolutely  be  divided."* 

§  58S.  The  truth  is,  that  the  legislative  power  is  the  great 
and  overruling  power  in  every  free  government.  It  has  been 
remarked  with  equal  force  and  sagacity,  that  tlie  legislative 
power  is  everj-where  extending  the  sphprfi  of  its  activity,  and 
drawing  all  jwwer  into  its  impetuous  vortes.  Tbe  founders  of 
our  republics,  wise  as  they  were,  under  tJio  influence  and  the 
dread  of  the  royal  prerogative,  which  was  prrs-ting  upon  them, 
never  for  a  moment  seem  to  have  turned  tlieir  eyes  from  the  im- 
mediate danger  to  lilK-rty  from  that  source,  combined  as  it  was 
with  an  h<.TL>dilary  authority  and  an  herclitury  )>oeruge  to  s»p> 
port  it.  They  si-ciu  never  to  have  recullcct^-d  the  danger  from 
legislative  usur^^ation,  which,  by  ultimati-ly  assembling  all  power 
in  the  same  hands,  must  lead  to  the  same  lyninny  as  is  threat- 
cued  by  executive  usurpations.  The  repivseutatires  of  tlu)  people 
will  watch  witli  jealousy  every  encroachment  of  Uie  cxcoutive 
magistrate,  for  it  tR'uchcs  utK>n  tlieir  own  authority.  Kut  wbo 
shall  watch  tlie  encroochment  of  these  repre>ienlaliveB  them- 
selves? Will  they  be  ns  jealous  of  the  exercise  of  power  by 
themselves  as  by  others?  In  a  representative  republic,  where 
tbe  executive  magistracy  is  carefully  liniilixl,  Ifoth  in  tlio  ctteat 
and  duration  of  its  power;  and  where  the  legislative  |>owcr  is 
escrcisud  by  an  assembly,  which  is  inspired  by  a  supposed  in- 
fluence over  the  people,  with  an  intrepid  conlidenee  in  its  own 
struugtli, — which   is  sulViriently  numerous  to  feel  all  the   pas* 

>  D«  LoIum,  B.  3,  cb.  S. 


CH.  VII.] 


DISTRimrTIOK   OP  P0WEB8. 


Bions  whioh  actuate  tho  oiultitiide,  jct  not.  so  nnin«roii«  as  to 
be  incapablf!  of  {mniuing  tho  objects  of  it^  [uissioiis  by  monns 
which  reason  preRcrilx^ii,  —  It  iti  ca«y  to  see  that  tlio  tondencp  to 
the  uHurpotion  of  power  ia,  if  not  constant,  at  least  proliablo; 
an<]  that  it  is  against  the  ontcr]>rif)inR  ambition  of  thia  d<!partr 
mvnt  tliut  tho  pcoplo  may  vol]  indulge  all  their  jculooay,  and 
cxhKusl  aVl  thfir  precautions. '  (a) 

§  534.  Tlwrc  arc  many  rcaaona  which  may  bo  afisificncd  for  the 
flugrotwing  influence  of  the  le^lativo  department.  In  the  finit 
pluot-,  ila  ooQcititutional  pDwerii  am  more  extensive,  and  leas 
capable  of  beini;  brought  within  precise  limits,  (han  those  of 
cither  of  thu  other  departmcnla.  The  bounds  of  tho  executive 
nnthortty  arc  easily  marked  out  and  deriued.  It  reaches  few 
obj<.-cts,  and  those  are  kuowu.  It  cumiot  transcend  them  with- 
out being  brought  in  contact  with  the  other  departuicuts.  Laws 
may  choi-k  and  restrain  and  Iwiind  its  exercise.  T)h^  same  re- 
marks  apply  with  still  greater  force  to  the  judiciury.  The  juris- 
diction is,  or  may  be,  bounded  to  a  f«w  ohjeota  or  persons;  or, 
however  general  and  iinlimit<>d,  it«  oprntions  ai-c  necca»arily 
confined  to  tlie  mere  administration  of  private  and  public  jus- 
tice. It  cannot  punish  without  law.  It  cannot  create  contro- 
versies to  aet  upon.  It  can  decide  only  upon  rights  and  cases, 
as  Ihcy  are  bronglit  by  otiK'rs  before  it.  It  can  do  nothing  for 
Itself.  It  must  do  cverytliing  for  others.  It  must  obey  the  laws; 
iuhI  if  it  corruptly  administers  thcni,  it  Is  subjected  (o  tlic  power 
of  inipeavhmenl.  "^^On  the  other  hand,  the  legislative  power, 
except   iu   the  few  cases  of  const  itutioual    prohibition,    is  tui- 

t  The  >\dmt»l,  No*.  tS,  4». 


(ft)  Ut.  Gcnmrncnr  Hortu  oapwii 
thi*  rtrjr  Rianxly  ;  ■■  What  doni  it  ]tlg- 
biff  llial  iiinii  i&onM  Inn  ■  writUn  con- 
fldatioB  oonUiaiBg  iuMi|nfr(Ksl  |in>Ti*- 
iom  awl  limiutMout  Tlie  IcgUlUin 
Uon  will  not  Iw  ciiUniilod  In  llio  atolita 
of  •  lo^l  Ml.  TbB  l»KJ]iUliira  will 
•Ivrays  innko  lb*  potrar  obicti  it  alibo 
to  rxcirite,  vnl«  it  1k  M  of^uiutd  u  la 
M«t«iii  witlitn  itMlf  tbtnflldMit  tbwk. 
Atttmpi*  to  rntlralB  it  front  «iit(^[e  liy 
otbtr  nxaiw  will  nnlir  rvii-Wr  It  pmii*  out- 
ngMua.  Th«  Mm  «f  ltiiiU«g  lcip>ki«n 
bjr  oath*  b  punila.    IlaTiiig  •vom  to  a- 


tnia*  tlie  ]ioiren  gnatol  ■oconliiig  to 
tbtir  tnw  intoii  asd  ■caning,  tbaj  wQl, 
whan  ibty  fc*!  •  dodn  l»  ga  Aiitbcr,  avdil 
tba  ^buue,  if  nM  tbB  i[ni1t,  oT  fninrf  bf 
•VMtiag  lb*  lr«*  tniaiit  inJ  nMsning  ta 
btV  Moording  l«  their  coropwheMtcii,  that 
viich  nlUtheit  parpem."  lib,  ^,  bj 
SpaHu.  Vol.  111.  p.  SS3.  And  agabi: 
"  fnlwfa  auT  axptrimee  aiU  ■altteienOT' 
pf«*«,  witliOMt  nawning  on  the  nitiicct, 
\bU  f^JfT  roniUIutlana  at*  iDjr«>l  bat 
oolimb  cholni  Iu  lit*  ttrong  arm  cf  l«gi» 
btion."    Id.  3S1. 


4A0 


or  m  uvrm  iTAmt.        [book  m. 


Ilmllml.  Il  U  ftiffvnr  vnryinff  Its  nwuu  ud  It*  ends.  It  por- 
Nrna  itH*  IfMlllutliKM  nnrl  Inwii  «ti4  public  poHrjr  of  the  countrj. 
Il  r<>irMlnl'<>)  (iM  ))■  viial  ItilxnMbi.  U  diiipniicii  nf  all  it«  property. 
IrtHili  liiil  Hi  Mix  (iirntUft  (■(  two  or  tliivtr  lmnohr«  nt  iU  ortlinar^r 
|Miwiira.  Il  IpvIm  hII  Uiicii  ;  ft  dlrrflta  luid  n|i|irri)triate8  all  8Up- 
|ill<4|  Il  Nivttt  III"  nil«H  f>>r  t)i'>  dfiiccnt,  diiitribiitjon,  and 
nt  nil  |tri(|H>t<i  lii'lit  liy  loiHviilaala.  It  imutml<i  the  Anurce»  aad'' 
IIh-  ii<«iiiiriH«  III  wi'atlk  It  chnnjnm  st  itii  will  the  whole  fabric 
lit  Hie  l«««<  Il  iimoliU  at  lla  pli-aiiiim  aliiinat  nil  tlio  institutit 
wlilvlt  ||lvi>  Hlri'iiitUi  mill  oomfort  ntid  diKnitr  to  noriety. 

I  AHA.  "lit  lli»  \\v\X,  \\\M'i\  a  U  thi'  din^'t,  risible  reprcaeat^- 
Mw  tit  Iho  will  **t  tht>  pp»pli>  iu  all  thi^  oltaitKCA  of  timt^  and  cir^ 
I'm  !  I  4.  1(  liDN  tho  [irido  u  wi'll  IU  thp  powor  of  ntunben.' 
|i  1  iu»vihI  and  BtNidily  ninvcd  by  the  strunt;  impuUaM 

|Hi|Mil«r  Im^lluit  nud  |w>)iular  «<d>uni.     It    otwra,  vithout  ivlvct- 
iUH«t  Mm>  «ialM«  utd  Uw  wiU  of  the  mtjfxitj  for  the  ttna 
IV  |wili  ttt  iMilttle  twnt  llw  ofHtt  bf  Mch  dbtHtmBtt 
ftitafa  Mv4  twiy  «ut*h"^'  ^'  tmpttnllT,  in  vbatenr 
MMiwHtjr  nl«lH«i  «**«  Ihoiick  ttigr 
lM«k    tl  tw  wv  MMttn^  AwwlHrm.  ta  b* 
tot  tl»  wt«  ))■»  u|  pttwwri  tani  ll  l&a>b  its  aa^ttua 

M%    t^m*  <riww»  ••«  Mi  aibmm  tha»  «C 


MA  ^  wAiiiMll  Ilk  «)t» 


|«lft.   W^fta^i^  <&!«.<« 


»■•■') 


CH.  ni.) 


DBTBIBUnOK  OF  POWERS. 


401 


exigency  ?  It  has  boen  saggcsted  that  on  oppon)  to  tbo  people, 
at  etat«(l  times,  might  rodrcss  on)-  incoiivcnicncc  of  this  sort 
But,  if  tliosa  bo  frequent,  it  will  have  u  Icndeacy  to  Iceson  that 
respect  for,  and  cooGdcuoc  in,  the  stubilitr  of  our  institutions, 
which  is  so  essential  to  their  salutary  influoQCC.  H  it  bo  true 
that  all  governments  rest  on  opinion,  it  is  no  k-ss  true  that  the 
strength  of  opinion  in  each  iudividual,  and  itit  pruclical  influence 
on  his  cnnduet,  depend  much  upon  the  numlicr  u-hich  he  supposes 
to  have  entortained  the  same  opinion.'  There  is,  too,  no  small 
danger  in  dintiirbing  the  public  tranquillity  by  a  frequent  recur- 
rence to  qncations  respecting  the  fundamental  principle«  of  gov- 
ernment.' Whoever  has  been  present  in  any  assembly  oonTcncd 
for  su(!h  a  purptwae,  must  have  perceived  the  great  diversities  of 
u]>iniun  ujkh)  the  mast  vital  questions,  and  the  e-vtremc  difTiculty 
in  bringing  a  majority  to  concur  tn  the  long^ightod  wisdom  of 
tlie  soundt.<st  prorisiotia.  Temporary  feelings  and  excitements, 
popular  pn.-judici>fi,  an  ardent  love  of  theory,  an  enthusiastic 
temperament,  inexperience,  and  ignoranee,  as  well  as  precon- 
ceived opinions,  operate  wonderfully  to  blind  Ihp  ju<l(nnent  and 
seduce  the  uuderstunding.  It  will  probably  bo  found  in  tlie  bis- 
tory  of  most  conventions  of  this  sort,  that  the  Itest  and  soundest 
parta  of  the  constitution,  those  which  give  it  permanent  value  as 
well  BS  safe  and  steady  operation,  are  precisely  those  which  have 
enjoyed  the  least  of  the  public  favor  at  the  moment,  or  were  least 
eatimatod  by  the  framers.  A  lucky  hit,  or  a  strong  ftgurr,  has 
not  imfrequently  overturned  the  best-reasoned  plan.  Thus,  Dr. 
Franklin's  remark,  that  a  legislature  with  two  branches  was  a 
wagon  drawn  by  a  horse  before  and  a  horse  behind,  in  opposite 
directions,  is  understood  to  bare  been  decisira  in  inducing  Penn- 
sylvania in  her  original  constitution  to  invest  all  the  legislative 
power  in  a  single  body.'  In  her  present  constitution,  that  error 
has  been  foi-tunatcly  corrected.  It  is  not  believed  that  the 
clause  in  the  constitution  of  Vermont  providing  for  a  septennial 
coancil  of  censors  to  inquire  into  tJte  infractions  of  her  constitu- 
tion during  the  last  septenary,and  to  recommend  suitsble  meas- 
ures to  the  legislature,  and  to  cull,  if  they  see  fit,  a  convention 
to  amend  the  constitution,  has  been  of  any  practical  advantage 
in  that  ^tat«  in  securing  it  against  legislative  or  other  usorpA- 

1  Tlw  FnUnliU,  No.  48.  •  Id.  Noi.  1$,  M. 

*  I  AiUni**  Anwricui  CnnttitDllOM,  IOC,  IDS. 

vol- 1.— ac 


402 


OONSTITtmOS  OF  THE  ONITED  STATES.  [BOOK  HI. 


tions,  beyond  the  security  pogsewed  by  other  States  having  no 
wich  provision.*  (a) 

§  5S8.  On  tho  other  hand,  if  nn  appeal  to  the  people,  or  to  a 
convention,  is  to  be  made  only  at  great  distance!)  of  time,  it  will 
afford  no  redress  for  the  most  preaeing  miiichiefs.  And  if  the 
mmuturca  which  ai-e  supposed  to  he  infraotions  of  the  conHtitntion 
titjoy  popular  favor,  or  combine  extenaive  private  intcresta,  or 
have  talcen  root  in  the  habit  of  the  government,  it  is  obviooa 
that  the  chanoes  of  any  effectnal  redress  will  he  ettaentially 
diminislied.* 

§  nHQ.  But  a  more  conchiaive  objection  is,  that  the  decisions 
npon  all  such  apprala  would  not  answer  the  purpose  of  maintain- 
ing or  reatoring  the  conatittitional  equilibrium  of  the  gorenunent. 
The  remarks  of  the  Federal  iat  on  this  aubjcct  are  «0  striking, 
that  they  scarcely  admit  of  abridgment  without  impairing  thoir 
foroe:  "We  have  seen  that  the  tendency  of  republican  govern- 
ments is  to  aggrandizement  of  the  legislature  at  tJic  expt-nso  of 
the  other  departments.  The  appeals  to  the  people,  therefor^" 
would  usually  be  made  by  tlie  executive  and  judiciary  depart 
ments.  But  whetlier  made  by  one  aide  or  the  other,  would  each 
Bid«  enjoy  eijual  udv&utagi'S  on  the  trial  f  Let  lis  view  their 
difFervnt  situutions.  The  mcmbeni  of  the  oxccuti\'e  and  judici- 
ary  departments  are  few  in  number,  and  can  be  personally  known 
to  a  small  part  only  of  the  people,  The  latter,  by  the  mode  vi 
their  appointment,  as  well  as  by  the  nature  and  permanency  of 
it,  arc  too  fur  removed  from  the  people  to  share  much  in  their 
prepoMKMioiis.  The  former  are  generally  objects  of  jealousy; 
and  their  administration  is  always  liable  to  be  discolored  and 
rendered  unjiopular.  I'ho  members  of  the  legislative  depart- 
ment, on  the  otlier  hand,  are  numerous.  They  aro  distributed 
and  dwell  among  the  people  at  large.  Their  connections  of 
blood,  of  friendeliip,  and  of  acquaintance  embrace  a  great  pro- 
portion of  the  most  influential  part  of  the  society.  The  nature 
of  tlieir  public  trust  implies  a  perstmal  weight  with  the  peo- 

I  Tha  iMarj  ot  llw  fonatf  conctltutiDa  tt  PraBtylvaiuK,  and  tlie  report  of  Ita 
fouiidl  of  e«nMn^  iliow  tbe  little  nliM  o(  prvrfiioM  ot  tbu  ton  in  •  Mnng  Itgtit. 
Th(  r«iknUM.  Not.  A9.  SO. 

*  The  PtikmUtf,  No.  M. 


(a)  Ttic  oonBdl  of  oMun  «u  abot- 
iibeil  in  Vtnnont  ia  1670,  hy  ■  coiwtitti- 


lioMl  iBiwilniwit  pcopaied  by  tha  coimaU 
tadt 


CH.  nt.] 


DISTBlDimOH   OP  POWERS. 


408 


pie,  tnd  that  they  ara  more  inunediatelf  the  confidential  i^ardi- 
ant4  of  their  rights  aju)  Ubertioa.  With  tb«8«  advanta^a,  it  can 
lly  be  supposed  that  tho  adrcrse  party  would  bare  an  eijunl 

''ohanoe  for  a  favorable  tiwuc.  Bnt  the  legislative  party  wriuld 
not  only  be  able  to  plead  their  caae  moet  succeiiafully  with  the 
people;  they  would  probably  be  ooDstitnted  tberoselTeH  the 
jndgea.     The  same  influence  which  had  ^ined  them  an  election 

'into  the  lo^slature  would  gain  thorn  a  seat  in  the  conTenliou. 
If  this  ehoiild  not  be  the  case  with  all,  it  would  probably  be  the 
cu«o  with  many,  and  pretty  certainly  with  those  leading  charac- 
ters, on  whom  ovcni'thint;  de]>cnds  in  such  bodies.  The  convco- 
tion,  in  short,  would  bo  composed  chieHy  of  men  who  had  twcn, 

kflr  who  setuHlly  were,  or  who  expected  to  be-,  members  of  the 

Fdepartmont  wliuso  conduct  waa  urraifriicd.     They  would  conxe- 
quently  bo  parties  to  tho  very  qufation  to  be  decided  by  them. " ' 
§  540.    If,  then,  occasional  or  periodical  uppuuls  to  the  pi'ople 

'  vonid  not  oilord  an  offoctual  barrier  againiit  the  inroads  of  the 
leipslaturo  upon  tho  other  dcpArtnicnts  of  the  government,  it  is 
manifest  that  resort  must  be  had  to  some  eontriranocs  in  the  in- 
terior structure  of  the  gorernmont  itself,  which  shall  exert  a 
constant  check,  and  preserve  tbc  mutual  relations  of  each  with 
the  other.  Upon  a  thorough  examination  of  the  subject,  it  will 
be  found  that  this  can  be  best  aecomplistted,  if  not  solely  aecom' 
pltab^d,  by  an  oceasioual  mixture  of  the  powers  of  each  depart- 
ment with  thut  of  the  otliers,  while  the  separate  existence  and 
constitutional  independence  of  each  are  fttlly  provided  for.  Each 
department  should  have  a  will  of  its  own,  and  the  mcmbors  of 
each  should  have  but  a  limited  agency  in  tbe  acta  and  appoint- 
ments of  the  members  of  the  others.     Bach  nhould  have  its  own 

Nadependence  secured  beyond  the  power  of  being  taken  away  by 
either,  or  both  of  the  otiiera.  I)ut  at  the  some  time  the  relatitmn 
d  taeh  to  the  other  sliould  be  no  stninir.  that  there  should  he  a 
mulltal  interest  to  sustain  and  prot*^ct  vach  other.  Tbore  Hbould 
not  only  be  constitutional  meana,  but  personal  motives,  to  resist 
en c roach nienttt  of  oni",  or  either  of  tlie  others.  Tims,  ambition 
would  be  made  to  counteract  ambition;  the  desiro  of  power  to 


■  1%*  F*d«i*lb^  So.  4*.  Tb*  tnth  of  IM*  t«Monlii(t  •*  well  m  tba  ttttm  iattt- 
tmy  of  tajr  micIi  ptnodiokl  conmilioM,  U  abiinilHitljr  Mttbluiinl  hj  llis  hatoi^  «l 
F«aii«)>lrui*  naicr  ber  tuumf  ONuttntlan.  Tkt  FadardlM,  K«.  tO.  8m  3  Fitkia'* 
Hbtorr.  SM,  Mfl. 


i'H 


cotmmmon  or  tsb  tnnnD  mns.        [book  m. 


dbiMik  p<>ir«r ;  uul  Uic  preHuit!  of  ioterait  to  bslanoe  sn  opposiog 

lllUiI'Mt.' 

I  M\,  T\wTif  H4'i'm»  no  ulecjoatc  method  of  produciog  this  re* 
mill  litit  liy  a  jiuHial  (i«rtici))«tion  of  each  in  tlie  povere  of  the 
i(llt«ri  uiil  Uj  liitrtxlucini;;  iuto  everjr  operation  of  the  gorern- 
iDtilit,  III  III)  itN  liraiichflK,  a  Hymtcm  of  checka  and  balances,  on 
wlii<t)i  l>iu  aariitjr  of  frcv  inatilutiuas  has  ever  been  found  esseo- 
(lally  to  ilirjiRtifl.  Thiia,  fur  instance,  a  guard  against  rashness 
ami  tfolnuou  in  Icgialiition  litm  often  been  foond,  hy  distribating 
IIhi  )K>wor  ninong  difTvrvnt  branches,  each  having  a  nogative 
iiIhioIi  ti|iim  Ihit  ol.|)»r.  A  guard  against  tlio  inroads  of  the  legis^4 
lutlvfl  (Miwi^r  upun  Uio  »xeotiti\x'  has  been  in  liko  munncr  api>liod, 
by  giving  tliii  liitUT  a  t|iinlifl(>d  nvgutiv»  upon  tho  former;  and  0> 
giHii*!  iiKHiiml  «;xi'oiitivi>  inlhivnco  niid  putroniige,  or  unlawful 
eiDraliMi  ii(  iiulliurlty,  by  roiiuiring  ttio  conourronco  of  a  select 
oniiiioll,  or  a  timnoh  of  tint  K->rwliihtre.  in  appointments  to  ofRce, 
Mid  ill  Ihn  diachorgo  of  iilhcr  higli  functions,  as  well  as  by  pla> 
viiig  the  ooiiiiuimd  of  a  roronuo  in  other  hands. 

^  Ml  Tbc  iikiihI  gitani,  applied  for  the  security  of  the  jodi- 
oiul  di'piirhiuntt,  bos  been  in  the  tenure  of  ofBce  of  the  judges, 
wht)  etnitinouly  are  to  hold  ofHoo  during  good  beharior.  But  this 
la  ttbvitHuily  uu  iuailt-iiuato  (jroriiiion,  while  the  l^islatnre  is  lap 
trusted  with  a  i-^iuiiilcte  power  over  the  salaries  of  the  jodgti^ 
aud  ovrr  ttii>  jurisdiolii,)Q  of  the  courts,  so  that  they  can  alter  or 
diiniuinh  thoiu  at  plrasnrn.  lad««d,  the  judiciarr  ts  aatitrmllj, 
a»tl  ttluKwt  ucvraaary  (as  has  been  already  said)^  the 
il«^r<iu«nt,''(a)  h  <--an  hare  no  means  ci  infliMiea  by 
a^pv  lt»  )xtwv>r»  oau  nen'r  be  wteMed  for  itseH  It  baa  no  i 
WMud  i>\vr  ihv  )Htra»  w  thw  sword  of  Uw  nalM^  It 
tfty  taxtret  uor  a{if«\>firiate  mcuMT,  aor  eoHHaad  •imiea* 
«t>l>«4nt  to  oakvo.  U  is  laevw  teva^k*  iatm  «aitert  wilb  the  i 
yiv  tv  v«NMtairi  a|»f«*k  »ai  MMiitarin—  ni4  pnvate 
whk*h  WhtM«  to  ftU  Uw  odNT  dqwtaMb  of  < 
•w«  iwty  bi  iwHiwaiss.  or  ii 


a«>B>«rta^K.ti.€b.c 


«!• 


CH.  TU.] 


DISTRIBUTION   OF  roWEBS. 


405 


rigid  justice  and  impartiality  give  it  no  claima  to  favor,  howerar 
thov  luuy  tu  rt-^pvct.  It  Htumhi  solitary  and  unaupparted,  except 
by  that  |>ortioD  of  public  c^iuion  which  in  intcruittcd  only  in  the 
strict  aditiiniatratioii  of  justice.  It  can  ru-cly  «ocurc  the  itym- 
pathy  or  zealous  support  eillicr  of  the  executive  or  tjie  IciriHla- 
tare.  If  they  are  not  (w  is  not  uDfrequcntly  the  cimo)  jealous  af 
|ta  prerogatives,  the  conittant  necessity  of  scrutinizing  the  avt«  of 
rdach,  upon  the  application  of  any  private  person,  and  the  painful 
doty  cl  pronouncing  judgment,  that  these  acts  are  a  departure 
from  the  lav  or  constitution,  can  have  no  tendency  to  conciliate 
kindnesa  or  nourish  influence.  It  would  aeem,  therefore,  that 
Bcnne  additional  guards  would,  under  such  circumHtanceti,  be 
ruwcssary  t<)  protect  this  department  from  the  alwolute  dominion 
of  the  others.  Yet  rarely  have  any  anch  guards  been  applied; 
and  every  attempt  to  introduce  them  haa  )>een  resisted  with  a 
pertinacity  which  demonatrates  how  slow  popular  leaders  are  to 
introduce  checkB  upon  their  own  power,  and  how  slow  the  people 
arc  to  believe  that  the  judiciary  is  the  real  bulwark  of  their  lib* 
ertica.  In  some  of  the  States  the  judicial  department  is  partially 
combined  with  some  branches  of  the  executive  and  legislative 
departments;  and  it  is  believed  that,  in  those  cases,  it  has  been 
found  no  unimportant  auxiliary  in  preserving  a  wholesome  vigor 
in  the  laws,  as  well  aa  a  wbolcaome  administration  <^  public 
juatico. 

§  54S.  How  far  the  Constitution  of  the  United  States,  tn  the 
actual  separation  of  theao  departments,  and  the  oocasional  inix- 
tnrcs  of  some  of  the  powers  of  each,  has  accomplished  the  obj<.-etB 
of  tho  great  maxim  which  wo  have  been  cotisidenng,  will  appear 
more  fully  when  a  survey  is  taken  of  the  particular  powers  con- 
fided to  e^ch  department.  But  the  tnie  and  only  test  must, 
after  all,  bo  experience,  which  corrects  at  once  the  errors  of 
theory  and  fortifies  and  illustrates  the  eternal  judgments  of 
natora 
S  544.  It  is  not  a  little  singular,  hnwerer,  aa  haa  been  al- 
ready atate^l,  that  one  of  the  pnnci|Hil  objections  ui^ed  npiinat 
the  Constitution  at  the  time  of  its  adoption  was  thia  occjuiunal 
mixture  of  power*,'  upon  which,  if  tho  preceding  rcaaoning 
(drawn,  as  must  bo  seen,  from  the  ablest  commentators)  be  well 
founded,  it  must  depend  fur  life  and  practical  inUuence.     It  was 

>  TIm  Folmlut.  So.  «7 ;  Id.  «S. 


406  coHBTRimoK  or  TBS  xnatxD  stateb.        [book  ta. 

Mid  that  the  Beveral  departments  of  power  were  diBtribated  and 
blended  in  snch  a  manner  as  at  once  to  destroy  all  eymmetoy  and 
beauty  of  form,  and  to  expose  some  of  the  essential  parts  <rf  the 
edifice  to  the  danger  of  being  cmshed  by  the  dispn^NM^cmaie 
vei^t  of  the  other  parts.  The  objection,  as  it  presents  itself  in 
details,  will  be  more  aceorately  examined  hereafter.  But  it  may 
here  be  said,  that  the  experience  of  more  than  forty  years  has 
demonstrated  the  entire  safety  of  this  distribution,  at  least  in 
the  quarter  where  the  objection  was  supposed  to  apply  with  most 
force.  If  any  department  of  the  government  has  an  nndoe  infln- 
ence  or  absorbing  power,  it  certainly  has  not  been  either  the 
szeentiTe  or  judiciary. 


en.  tol] 


<BE    I.Kp'M.ATIJIH, 


407 


CHAPTEB  Tia 


TUG  LEOISLATCBK 


§  545.  The  dnl  article  of  the  Constitution  contains  the  atract- 
ire,  organixation,  and  powers  of  tbo  It^slaturo  of  the  Union. 
Eachnection  of  that  arliclPi  and  ind<.>«xl  of  m-vrj-  otiior  article, 
vill  require  a  careful  analysis  and  distinct  examination.  It  is 
proposed,  therefore,  to  bring  each  sepanteljr  under  review,  in 
preHnnt  C'ommentarira,  and  to  unfold  the  reasons  on  which 
'each  is  founded,  the  ohjfM;iiona  which  have  been  urged  against 
it,  and  the  interpretation,  ho  far  an  it  can  satiafactori  ly  b«  ascer- 
tained, of  the  tnrnut  in  which  each  is  exprcsacd. 

§  546.    Tlie  lirat  aection  of  the  firat  article  is  tn  the  following 
words:  "All  legialatire  powera  herein  granted  ahall  be  x-eated 
a  CongreAa  of  the  United  States,  which  sliall  consist  of  a 
'  Senate  and  House  of  Repreaentatirca. " 

§  547.  This  section  involves,  as  a  fundamental  rule,  the  ex- 
ercise of  the  legislative  power  by  two  distiiint  and  independent 
branches.  Under  the  confederation,  the  whole  leginlativo  power 
of  the  Union  was  vested  in  a  single  branch.  Limited  aa  was 
that  power,  the  concentration  of  it  in  a  single  body  was  deemed 
prominent  defect  of  the  confederation.  Hut  if  a  silicic  assem- 
bly could  propei-ly  l>e  deemed  a  fit  receptacle  of  the  slender  and 
fettered  authorities  confided  to  the  federal  government  by  that 
I  instrument,  it  could  scarcely  be  consistent  with  the  principles  of 
,  good  government  to  entrust  it  with  the  more  enlarged  and  vig- 
UB  powers  delegated  in  the  Constitntioiu' 
§  &48.  The  utility  of  a  subdivisiou  uf  the  l^slativc  power 
^into  dilTcrcnt  branches  having  a  negative  upon  each  other,  is, 
perhajis,  at  the  present  time  admitted  by  moat  persona  of  aound 
reflection.'  Hut  it  has  not  always  found  general  approbation, 
and  is,   even  now,  sometimes  disputed  by  men  of  apcculatiru 

>  The  rnlrtaliit.  No.  SI. 

<  JtBcnw*  NMc«  on  VliglnU,  lU ;  1  Kml'*  Comm.  9DS ;  V*  Lalma  em  tlM 
CoMtUatiaa  «f  BngluH].  &  %  eh.  8 ;  a  Aiwr.  Homu,  «,  M,  Got.  Kuidolpk'* 
L*tMr. 


MS 


CONSTITDTIOK   OP  THE  OKITBD  STATES.  [BOOK  III. 


iogenuity  and  recluse  habitii.  It  has  been  justly  obsonred  that 
there  is  scarcelj^  in  the  whole  science  at  politics  a  more  impor- 
tant maxim,  and  one  which  bears  with  grcator  influouce  upon 
the  practical  operations  of  government  It  has  bcun  already 
Btjitud  that  Pi^onsf  Ivania,  in  her  fimt  constitution,  adopted  the 
scheme  of  a  single  body  a»  the  depositary  of  the  Irgislatire 
power,  under  tlio  inSuenco^  as  i«  uudcnitood,  of  a  mind  of  a 
very  high  philo«ophical  character.!  C!eoi:g'ia,  also,  is  said  in  her 
first  constitution  (since  cliaoged)  to  have  confided  tlie  whole 
legislative  power  to  a  single  body.'  Vermont  adopted  the  same 
course,  giving,  however,  to  the  executive  council  a  power  of  re- 
vision and  of  proposing  amendments,  to  which  she  yet  adheres.*  (a) 
We  are  also  told  by  a  distinguished  statesman  of  great  accunu^ 
and  learning,  that  at  the  fir»t  fonnatiou  of  our  Slate  constitu- 
tions it  waa  made  a  question  of  transcendent  importance,  and' 
divided  the  opinions  of  our  most  eminent  men.  I^^islatipn, 
being  merely  the  expivs^ioit  of  the  will  of  the  community,  was 
thought  to  be  an  operation  so  simple  in  itfi  nature  tliat  iuexp^ri- 
cncod  reason  could  not  readily  perroivo  the  neceitaity  of  commit- 
ting it  to  two  bodies  of  men,  each  having  a  decisive  check  upon 
the  acticHi  of  the  other.  Alt  the  argnmenta  derived  from  the 
analojry  between  the  movements  of  )>oUticat  bodies  and  the  oper- 
ations of  physical  nature,  all  tlie  impulaca  of  political  parsimony, 
all  the  prejudices  against  a  second  co-ordinate  legislative  assem- 
bly stimulated  by  the  exemplification  of  it  in  the  British  Parlia- 
ment, wore  against  a  division  of  the  legislative  power.* 

§  549.  It  is  also  certain  that  the  notion  that  the  legislative 
power  ought  to  l>o  confided  to  a  single  body,  has  been,  at  various 
times,  adopted  by  men  eminent  for  their  talents  and  virtuea. 
Uilton,  Turgot,  Franklin,  are  but  a  few  among  tliusc  who  have 
professedly  cntcrlaincd  and  discussed  the  question.*^    Sir  James 

■  1  Ailuiu'i  Defenco  oT  Inaieta  OoMititiitloai,  lOS,  IM ;  S  Pitk.  Hut  Wi, 
304,311. 

■  1  Knt'*  CdaiB,  MS :  S  Pllk.  HkL  81S. 

•  i  Pitk.  Uiit.  314,  SIS ;  CMut.  «f  Tcnaont.  ITn.  dt.  S;  fif  lltf. 

•  PrMi>l«ui  J.  Q.  Ailun^B  OnttMi,  *th  Ju1.t,  ISSl.  8m  tlM  AduM**  Dctoee  of 
AnNClgtli  CoiutitBtiaiw.  (NT  M.i  1  Kent'*  Comin.  SOS,  M»,  110;2  Pitt  HkUVa, 
800 ;  Fkkjr'a  UcimI  PbikiMphj,  &  «.  du  7. 

•  1  A<Uiiu'«  DtCcMM  ol  AMtricui  CoMtiMtlMM,  3:  Id.  lOS;  l<L  IM;  S  PiLk. 
HiaL  133.    Aul«,  |l  IB,  f  MS. 

(■}  Aatt,  p.  49X  I"**  W- 


CH.  nn.] 


TRE  LtCtSLkTUm. 


409 


Uaokintodh,  in  a  vorlc  of  a  controveniial  character,  written  vith 
a  zoal  and  oloquvnco  of  youth,  advocated  the  doctrine  of  a  single 
Icgislativo  bodj.'  PerhaiM  his  mature  life  majr  hare  changed 
this  early  opinion.  At  ail  evcnla,  he  can,  in  our  day,  count  few 
foUuwvnt.  Against  his  opinion,  thus  uttered,  there  in  the  aad 
example  uf  Prance  itself,  whoso  first  constitution,  in  1791,  was 
fonncd  on  this  basin,  and  whose  procci>dinga  thf^  genius  of  thin 
great  man  wiut  emjiloycd  to  vindicate.  Sho  stands  a  monument 
of  the  foily  and  mischiefs  of  the  scheme ;  and  by  her  subBequent 
adoption  uf  a  division  of  the  lei^slativu  power,  she  baa  SL^curcd 
to  herself  (as  it  is  hoped)  the  permanent  blcssiuKS  of  liberty.* 
Against  all  visionary  reasoning  of  Ibis  sort,  Mr.  Chancellor 
Kent  has,  iu  a  few  {uigcs  of  pregnant  sense  and  brevity,  oon> 
denscd  a  decisive  argumcnU^  There  is  danRCr,  however,  that  it 
may  hereafter  bo  revived;  and  indeed  il  is  occasionally  hinted 
by  gifted  minds,  as  a  problem  yet  worthy  of  a  fuller  trial.* 

I  650.  It  may  not,  therefore,  be  iminstnictivc  to  review  some 
of  the  principal  ai^uments  by  which  this  dtviaion  is  vindicated. 
The  fintt  and  most  important  ground  is,  that  it  ionu»  a  great 
check  upon  _.undue,_  hasty,  and  opprcwivc  Ic^lation.  Public 
bodtes,  like  private  persons,  arc  ocrasiunully  under  the  dominion 
of  atroDg  passions  and  excitements:  impatient,  irritable,  and 
impetuous.  The  habit  of  acting  together  produces  a  strong  ten- 
dency to  what,  for  want  of  a  better  word,  may  be  called  the  cor- 
poration spirit,  or  what  is  so  happily  expressed  in  a  foreign 
phrase,  Ve»prit  du  corpt.  Certain  popular  leaders  often  act^uire 
an  extraordinary  ascendency  over  the  iMxiy,  by  their  talents, 
their  eloquence,  their  intrigues,  or  their  cunning.  Measures  are 
often  introduced  in  a  huri-y,  and  debated  with  little  care,  and 
examined  with  h^ss  caution.  The  very  roHtlessness  of  many 
minds  produces  an  utter  impoesibility  uf  debating  witli  much 
deliberation  when  a  measure  has  a  plausible  aspect  and  enjoys  a 
momentary  favor.  Nor  is  it  infrequent,  especially  in  east-s  of 
this  sort,  to  ovcrIo<A  well-founded  objectioua  to  a  measure,  not 
only  because  the  advocates  of  it  have  little  desire  to  bring  them 


t 


>  tUckiataah  on  iht  French  ReTolotlov  (liM),  tth  *AU.  pfL  2W  to  Srs. 

•  1  Ktmt't  Ommd.  »»,  SID.  *  I  Xcnfa  Conu.  SM  to  SIO. 

*  Hr.  Tuckir.  Urn  lauMd  utlior  of  tlw  OawMntniw  ««  BlukatMm  mtmt  to 
hoM  til*  ■lactrimv.ilMi  •  dlTUoa  «l  the  Icgitktlv*  paw  ■  not  luefnl  or  impartonb 
SMl^ck.  Bfack.  Cooun.  App.  32S,  m. 


410 


CONSnTUTION  OP  TBE  CNITCD  STATIS.  [BOOS  IB. 


JQ  rcricw,  but  became  the  exponents  are  crft«n  aeduced  ioto  a 
credulo<L8  silence.  A  legbUtive  bodjr  is  not  ardinarily  apt  to 
mivtntflt  its  own  powero,  nnd  far  leos  the  temperate  exercise  of 
tfao«e  powers.  As  it  prescril>efl  ita  own  riilfs  for  ita  own  delib- 
erations, it  easily  relaxes  thein,  whenever  any  pressure  is  made 
for  an  immediate  deciaiou.  If  it  feela  no  chc<:k  but  its  own  will, 
it  rarely  has  the  Urmncss  to  insist  upon  holding  a  qaeatiun  long 
euouxb  under  ita  oim  view  to  tux  and  m&rk  it  in  all  its  beuiiigB 
and  relations  on  society.^ 

§  5&1.  But  it  is  nut  mensly  inconsiderate  and  rash  te^latJNi 
which  is  to  be  guarded  against,  in  the  ordinary  course  of  things. 
There  is  a  strong  propensity  in  public  bodies  to  accumulate 
power  in  tlicir  own  bunds,  to  widen  the  extent  of  their  own  in- 
fluence, uud  to  Hl'sorb  within  their  own  circle  the  means  and  the 
motives  of  pktroniH^.  U  the  whole  legislative  power  is  vested 
in  a  single  body,  tliere  can  be,  practically,  no  restraint  upon  the 
fullest  exercise  of  that  power;  and  of  any  nsurpution,  which  it 
may  seek  to  excuse  or  justify,  either  from  necessity  or  a  superior 
regard  to  the  public  good.  It  has  been  often  said,  titat  neoewitj 
is  the  plea  of  tyrants;  but  it  is  equally  true,  that  it  is  the  ptea 
of  all  public  bodies  invested  with  power,  where  no  check  exist^ 
upon  it8cxercise.*(<i)    )lr.  Hume  has  remarked  with  great  sft- 

>  I  Kpot'*  Comni.  iCiS,  fi09  ;  S  Amer.  UmMma,  M,' 

'  TIm  ru-ilit;  with  which  nvn  gn*,t  mva  tattirv  tliMiudTW  with  cxMsdlnj  tlwlr 
Mtuthntioinl  pottrra  «»  n«»CT  Ixtter  wMnfJifiwi  tWn  by  Hi.  Jpffrregii'i  own  pntc- 
tioo  Mid  csUDplcv  •«  (Uttd  m  him  own  Mrrapondcneg.  In  ItOi,  be  fBttnd  into  ■ 
Inal}',  bj  wliicb  LonUUna  wu  t«  becotna  a  put  of  tba  Unlco,  aHhoOfh  (m  wc  bavo 
w«n^,  In  bit  own  oplnlan,  il  wu  BDconxtllniloiuJ.  4  JttfNUMi'*  CaiTr*i>.  I.  &  S,  4. 
Anil,  In  1810,  h«  toaUndod  tar  tht  rtghl  of  tiM  «x*CDtivc  lo  iiimhMK  FlnrUi,  If  la  hti 
own  o|iiBioa  U>«  ofiiwrtunily  iroulil  oth«rwi«e  l«  leM,  notwilbunndjag  it  uigbt  la- 
*olrc  a  bsniignMOtt  of  the  law.  Id.  IIB,  ISO.  Snob  an  the  osaai|ilc«  gircn  of  a 
Sum  nccouUy,  which  ia  t*  Mipcnak  tbo  Cooitttnti«iu  and  Uwa.  Sod)  ur.  the  |rin(n< 
lihft  whlnh,  hi)  oonUouUd,  JiutUed  bim  U  an  ttnal  of  penona  not  «""'■""*■'  t^  law. 
Id.  IH. 


(a)  Durinc  tba  lati  dvll  wu  a  p««t 
aumbir  of  amata  mot*  iniulg  wiUiout  au- 
dlorttT  «f  law ;  aaiDt  of  iheaw  d<nit>lka^  ia 
Ilia  balitf^  whJtA  Wat  •onialimm  airowad 
and  joMified,  that  to  avs  Ihn  CoaitilntiaB 
and  law*  It  wai  nocsBiry  in  xht  tmr. 
pncy  tbal  tor  ibe  tiaw  bang  on  Hiaa 
tat^itti*  Uwy  (hoaU  b*  alkat.  Uan/  of 
tiMM  cMw  Mvar  bcoaaw  tb«  tubjrct  of 


jndidal  OMuhkntioe ;  bat  in  Ex  part* 
MlUitpu.  <  Wall.  2,  it  «ai  t\fttM.  by  ika 
Sapmua  Court  that  lb*guanntM«  of  Iii4i- 
Tiilual  liWrljr  ia  Iha  Contiutlon  were 
isttodvl  for  a  Mala  of  wu  ■*  wvU  m  • 
ftala  of  |<nac^  and  tvn  oqaallj  blading 
apon  raltn  and  prnjila  at  all  tiaiM  aad 
naAiT  all  cireuuiatoaan.     C 


dt.  VTII.] 


THH  LEOtHLATCRE. 


411 


gwity,  that  men  are  generally  more  honont  in  their  private  thui 
in  t)i<-ir  [inlilio  capacity ;  and  will  go  irnwtcr  Icuf^H  to  serve  a 
pturtji-,  thftn  vhen  their  '>vn  prirato  interest,  in  alone  cmcemed. 
Konor  ia  a  ^-oat  check  iifmn  mankind.  But  where  a  conaidera> 
hie  IxkIv  of  men  act  tog^tJier,  thin  cheek  ia  in  a  f^reat  mcuare 
removed,  since  n  man  i»  nuro  to  be  appi-oved  of  by  his  own  |>ar^, 
for  what  promotes  the  e-ommon  interent ;  and  he  tioon  learns  to 
denpise  the  (-lamorB  of  adveraiiriea.'  lliis  is  hy  no  nieiuui  an 
opinion  peculiar  to  Mr.  Hume.  U  viil  b«  found  lying  at  the 
fonndation  of  the  political  reaaoningn  of  many  erf  the  greateat 
men  in  all  ages,  aa  the  rennlt  of  a  close  Burvey  of  the  paasionfl 
and  infirmitiea,  of  the  hiatory  and  experience  of  mankind.*  With 
a  view,  therefore,  to  preaerve  the  ri^hta  and  liberties  of  the  peo- 
ple againat  unjnat  encroachmenta,  and  to  secure  the  e^iual  hene- 
fita  of  a  free  confltitntion,  it  is  of  vital  importance  to  iatorpoae 
some  chock  ugiiinst  the  undue  exercise  of  Iho  legislative  power, 
which  in  every  government  ia  the  predominating  and  almost 
irresistible  power.' 

§  S52.  This  subject  is  put  in  a  very  strong  light  by  an  emi- 
nent writer,*  whose  mode  of  rvmsfjning  can^bc  bc-st  convoyed  in 
his  own  words.  "If,"  says  he,  "wo  should  extend  our  candor 
BO  far  aa  to  own  that  the  majority  tA  mankind  are  generally  under 
the  dominion  of  benevolence  and  good  intentions,  yet  it  must  be 
confessed  that  a  vast  majority  frequently  transgress,  and  what 
is  more  decidedly  in  point,  not  only  a  majority,  but  almost  all, 
oonGne  their  botievuleucc  to  their  fatnilloa,  rolatiuiiK,  penional 
friends,  parish,  village,  city,  county,  province,  and  that  v«ry  few 
indeed  extend  it  impartially  to  tlic  whole  community.  Now, 
grant  hut  this  tmtli  and  the  tiue^tion  is  deoidod.  If  a  majority 
are  capable  of  preferring  their  own  private  interests  or  that  of 

<  1  Hvme'i  Emj^  EMty  Oi  Id.  Km>7  IS.  Ur.  Itttneu  Im  wid  that  "At 
fiwctionariea  of  foV&e  foww  tunly  atnaglbta  la  thttr  dbpoctlioiM  to  okridg*  tL"- 
I  JtScnMi'*  Cormp.  S77. 

*  8ei  I  Mtat't  DofmM  of  AnntMn  CoortitMthMMk  f.  131,  LKtrr  SS,  4e. :  Id. 
U»«T  S4  ;  Id.  LfiXn  Si  ;  I  Uumt\  r.aMrl^  E^f  1< ;  1  WiUm'i  Law  ImL  SM  to 
S97 1  t  AiLami't  IVf«ic«  el  Ammitma  OcdiMilutioii>,  loiter  0,  p.  SO*,  to. 

*  Sf r.  nuBit's  tboo^b  an  ottni  ittiktag  and  Mnvlticing ;  but  hi*  tnoda  of  *  p«iT- 
Bn4  oMuacawMltli  <1  Hame'i  Kmmjt,  Eonr  14)aonlwmtotMerUwmort<xkaT^Wt 
Vi^riia  of  tlM  biuaan  ulad,  cqiuUcd  <miy  hj  Lod«'a  OoMtitBtiiui  «t  CknUas. 
n»m  auinplM  (how  tb«  Auftr  of  Rlfiav  iMpUdtljr  i^m  tha  mtn  •pMalstiva 
flffailsM  «t  itw  w<««t  nun. 

*  Mr.  Jaba  AiUhk 


413 


CONSTITUTION   Of  TBB  UrrtTBD  STATES.  [BOOK  m. 


Ir  famiiic«,  counties,  and  partj,  to  that  of  the  nation  col- 
lectively, some  proTision  must  be  made  in  tlic  Conatitiition  in 
favor  of  justice,  to  compel  all  to  respect  the  common  right,  the 
public  good,  the  uuireraal  lav  in  preference  to  all  private  and 
partial  considerationa."'  Again:  "Of  alt  possible  forms  of  gov* 
emmcnt,  a  sorereignty  in  one  assembly,  successively  chosen  by 
the  )>eoplc,  is,  perhaps,  the  best  calculated  to  facilitate  the  grati* 
lication  of  self-love,  and  the  pnrsuit  of  the  private  interest  of  a 
few  individuals.  A  few  eminent,  conspicuous  characters  will  be 
continned  in  their  seats  in  the  sovereig:n  assemhly  from  one  elec- 
tion to  nnother,  whatever  changes  &i'&  made  in  the  seats  around 
them.  By  superior  art,  address,  and  opulence,  by  more  splendid 
birtli,  repdtationa,  and  otmnectiona,  they  will  be  able  to  intrigue 
with  their  people,  and  their  leaders  out  of  doom,  until  they  worm 
out  most  of  their  oppoeers  and  introduce  their  friends.  To  this 
end  they  will  bestow  all  ofRces,  contracts,  privileges  in  com- 
meroe,  and  other  eniolumouts  on  the  latter,  and  their  oonui-ctiona, 
and  throw  every  vexation  and  disappointment  in  the  way  of  the 
furm<.>r,  until  they  establish  such  a  flyst«m  of  hopes  and  fears 
throughout  the  whole  State  us  shall  enable  them  to  carry  a  ma- 
jority in  every  fresh  election  of  the  house.  The  judges  will  be 
appointed  by  thom  and  their  party,  and  of  consequence  will  be 
obticquious  enough  to  their  inclinatiotiB.  The  whole  judicial  au- 
thority, as  well  us  the  executive,  will  bo  employed,  perverted,  and 
profitttutcd  to  the  purposea  of  clectionucrinir.  No  justice  will  be 
attainable,  nor  will  innocence  or  virtue  be  safe  in  the  judicial 
courts  but  for  the  friends  of  tlie  prevailing  leaders.  Legal  pro- 
secutions will  be  instituted  and  carried  on  against  opposers,  to 
their  vexation  and  ruin.  And  as  they  have  the  public  purse  at 
command,  as  well  as  the  executive  and  judicial  power,  the  public 
money  will  be  expended  in  the  san>e  way.  No  favors  will  be  at- 
tainable but  by  those  who  will  court  the  ruling  demagogues  of 
the  hoiiae  by  voting  for  their  friends  and  intitrumenta;  and  pen- 
sions,  and  pecuniary  rewards  and  gratifications,  as  well  as  honors 
and  ofTicca  of  every  kind,  voted  t«  friends  and  partisans,  etc. 
The  press,  that  great  barrier  and  bulwark  of  the  rights  of  man- 
kind, when  it  is  protected  by  law,  can  no  longer  bo  free.  If  the 
autJiom,  writers,  and  printers  will  not  accept  of  the  lure  that  will 

>  3  A<lun'»  D«>reDM  of  Ameriout  OmnUtuUont.  Uttltr  6.  pp.  SIS.   »«.      8«« 
Sortli  lanieMi  Bmtn,  Out.  ISXT,  f.  SCS. 


CB.  vni.] 


lEM  LEOrSLATCBB. 


418 


be  offered  tbcm,  they  must  submit  to  the  ruin  that  will  be  do- 
Dounocd  agoiiut  th«in.  Ilie  presses,  with  much  sccrecj  and 
concealment,  will  be  made  the  vehicles  of  calumny  affninst  tiie 
minority,  and  of  pam^-rie  and  empirical  applauses  of  the  lead- 
ers of  the  majority,  and  no  remedy  can  poBsihty  l)e  obtained,  y  In 
one  word,  the  whole  system  of  affairs,  and  erery  oonceivablo 
motive  of  hope  or  fear,  will  ho  employed  to  promote  tho  prirate 
intoreflta  of  a  few,  and  their  obeequioua  majority;  and  there  is  no 
remedy  hut  in  anna.)  Accordingly  we  find  in  all  the  Italian 
republics,  the  minority  always  wore  driven  to  arnia  in  despair."' 

§  668.  AnoUicr  learned  writt-r  kaa  ventured  on  the  Iwld  dec- 
laration, that  "9  flin^Io  legislature  is  calculated  to  unite  in  it  all 
the  pcniicious  qualitii's  of  tin;  different  extremes  of  had  ^rem- 
meni.  It  produciw  general  wcnidiesii.  inactivity,  and  confusion, 
and  these  are  intermixed  witli  sudden  and  violent  fits  of  de«po(> 
ism,  injustice,  and  cruelty."' 

§  554.  Without  conceding  that-  this  lan^nairc  exhibits  an  un- 
eziggemttfd  picture  of  the  results  of  the  legislative  power  being 
vested  in  a  single  assembly,  there  is  enough  in  it  to  satisfy  the 
minds  of  considerate  men,  that  there  is  great  danger  in  such  an 
exclusive  deposit  of  iU'  Some  obeck  ought  to  bo  provided,  to 
maintain  the  real  haloncc  intended  by  tho  Constitution ;  and  this 
chock  will  bo  most  effectually  ohtained  by  a  co^irdinato  branch 
of  equal  autiiorily,  and  different  organization,  which  shall  have 
tlie  same  legislative  power,  and  paAflens  an  independent  negative 
upon  the  doings  of  the  other  hranch.  The  value  of  tho  check 
will,  indeed,  in  a  great  measure,  depend  upon  this  difference  of 
'organimtion.  If  the  term  of  office,  the  qualificatioos,  the  mode 
of  election,  tho  persons  and  interests  repr«s(.-nted  by  each  branch 
are  exactly  the  same,  tho  check  will  be  less  powerful,  and  the 
guard  lees  perfect,  than  if  some  or  all  of  those  ingrcdtonts  differ, 
so  as  to  bring  into  play  all  the  various  tntercets  and  tnfluencM 
^  which  belong  to  a  free,  honest,  and  enlightened  society. 

§  665.  The  value,  then,  of  a  distribution  of  the  legislative 
power  between  two  hninches,  each  possessit^  a  negative  upon  the 
other,  may  be  summed  up  under  ttic  following  heads.  First :  it 
operates  directly  as  a  socvrity  against  hasty,  rash,  and  dangerous 

I  t  AduM'i  DtfntM  (nf  ABktricu  OwtttvtiaM,  3S4  to  SM. 
•  1  WUnii'iLMLa:LSMto<M;TbtredMitiM,  No.  tt. 


414 


CONSTITD'nON  OP  TBB  U»rBD  8TATB8.  [BOOK  Uf. 


•a 


legialation :  and  allows  errors  and  mistakea  to  be  corrected, 
before  they  have  produced  any  public  misdiiefs.  It  interpooea 
delay  betwctii  tlie  inlroductioa  und  final  adoptitm  of  a  mouBur^ 
and  thua  funiiabva  time  for  rvflcction,  and  for  the  kuccwwivo  de- 
liberations of  dilTcrCDt  bodies,  actuated  by  different  motives,  and 
orgauiEcd  upon  diCTerent  principlM. 

§  556.  In  the  next  place,  it  operates  indirectly  an  a  prevcntire 
t@  attempts  to  carry  private,  personal,  or  party  obji'ct*,  nut  con- 
nected with  the  common  good.  The  very  circuiiuilaiioe  that 
there  exists  another  body  clothed  with  equal  power,  and  jealous 
of  its  own  rights,  and  independent  of  the  inflnence  of  the  leaden 
who  favor  a  jiarticular  measure,  by  whom  it  must  be  scanned, 
and  to  nhoni  it  must  be  recommended  upon  its  own  merits,  will 
have  a  silent  tendency  to  discoarage  the  efforts  to  cany  it  by 
surprise,  or  by  intrigue^  or  by  cormpt  parfy  corabinationa.  It 
is  far  less  easy  to  dci-eive,  or  corrupt,  or  peniuade  two  bodies 
into  a  course  subvorsive  of  the  general  good,  than  it  is  one; 
especially  if  the  elements  of  which  they  are  compueed  are 
esiM-ntially  different. 

§  557.  In  the  next  place,  as  Icjnslation  necessarily  acts,  or 
may  set,  upon  the  whole  commtmity,  and  involves  interests  of 
vast  difficulty  and  complexity,  and  requires  nice  adjustments 
and  comprehensive  enactments,  it  is  of  the  greatest  consequence 
to  secure  an  independent  review  of  it  by  different  minds,  acting 
under  different  nod  sometimes  opposite  opinions  and  feelings;  so 
that  it  may  be  as  perfect  aa  human  witidom  can  devise.  An  ap- 
pellate jurisdiction,  therefore,  that  acta  aud  is  acted  upon  alter- 
nately, in  the  exercise  of  an  indejvendont  rerisory  authority,  must' 
hare  the  incuus,  and  can  scarcely  fail  to  possess  the  will,  to  give 
it  a  full  and  satisfactory  review.  Every  one  knows,  notwith- 
standing nil  the  guards  interposed  to  secure  due  deliberation, 
how  imperfect  all  human  legislation  is;  how  much  it  embraces 
of  doubtful  principle,  and  of  still  more  doubtful  utility;  bow 
various,  and  yet  how  defective^  are  its  provisions  to  protect 
rigtits  and  to  redress  wrongs.  Whatever,  therefore,  naltiroDy 
and  necessarily  awakens  doubt,  solicits  caution,  utimrls  in- 
qniry,  or  stimulates  Wgilonoe  and  industry,  is  of  value  to  aid  ns 
•{pinst  precipitancy  in  framing  or  altering  laws,  as  well  as 
against  yielding;  to  tlic  suggestions  of  indolence,  tlie  selftsh  pro- 
jects of  ambition,  or  the  cunning  devices  of  corrupt  and  hollow 


CH.  Tm.] 


THE  LBOreUATURIt. 


415 


demago|xiiP9. '     For  thin  purpose,  no  better  ex|>e<li(<nt  has,  m  yet, 
lw«n   found,   than   tho   creation   of   an   iiHlepen<lent    branch    of 
cenanni  to  revise  the  legialativc  enactments  of  others,  and  to  ^ 
altfir,  amend,  or  reject  them  at  its  pleasure,  while,  in  return,  its 
own  am  to  paos  through  a  like  ordeal. 

§  568.    In  the  nest  place^  there  can  scarcely  be  any  other  adc- 
tpui»  Moarity  against  cncroa^^lunentfl  ujmn  the  conatitutiooal  ' 
rights  and  liberties  of  th<>  people.     Algernon  Sidney  haa  said 
with  great  force,  that  tho  lei^iBlatire  power  ia  always  arbitrary 
and  not  to  be  tnutted  in  tli«  hands  of  any  who  are  not  bound  to 
obey  thi'  laws  llioy  muko,*     But  it  is  not  less  true  that  it  haa  a 
coustAnt  tendency  to  overleap  iIm  proper  boundaries,  from  pas- 
sion, from  ambition,  from  inudrcrlcncc,  from  the  prevul<Mico  of 
faction,  or  from  the  overu-helming  intlucnoc  of  prtvtitc  intcrcsta.' 
Under  such  circumstances,   the   only  effectual   barrier  against 
oppression,  accidental  or  intentional,  is  to  separate  its  opera- 
tions,  to  balance  interest  against  interest,  ambition  against  am-    . 
bition,  the  combinations  and  spirit  of  dominion  of  one  body 
against  the  like  combinntiotts  and  spirit  of  another.     And  it  is 
obvious  that  the  more  various  tho  elements  which  enter  into  the  ^ 
actual  compoaition  of  each  body,  the  greater  tho  security  will 
be.*     Mr,  Justice  Wilson  has  truly  remarked,  that  "when  a  sin- 
gle legialature  is  determined  to  depart  from  tho  principles  of  the 
Constitution,  and  itt  uncoHtroltable  pover  tnai/  prompt  the  deter-    - 
TrunativH,  there  is  no  constitutional  authority  to  check  its  prog- 
leaa.     It  may  prtwecd  by  long  and  ha8t>-  strides  in  violating  the 
Constitution,  till  nothing  but  a  revolution  can  check  its  caroor.    ^ 
Far  different  will  the  cose  be  wlien  tho  legislature  consists  of  -• 
two  branches.     If  one  of  them  should  de|*art,  or  attempt  to  dc* 
port,  from  tho  principles  of  the  Constitution,  it  will  bo  drawD 
back  by  the  other.     Tho  very  apprehension  of  the  event  will  pre* 
TOnt  tho  dci>arturc,  or  tlie  attempt "  * 

*  "Look,"Mji  an  lattHigutt  wriUr,  "inls  mrj  «odetj,  ankljn  pnMi«  sm*^ 
nrm,  ttid  gtt  U  lb*  imI  mniatton  «t  thern.  Hid  it  will  be  fomid  that  bv,  vtrj  Urn 
mm  ia  vnry  gnvramant,  *md  te  At  mo^  JtmaenUii^  ^crAop*  Uu  ftieal,  »ta,  la 
(Kt,  th«  pnwna  who  giT«  tlw  ImJ  tnd  dlrtcdoN  to  >1)  ohMt  U  bfMwht  to  pMi."  — 
TtuMghu  apon  tin  PMitkd  fitnatkn  of  tb«  Ontod  StrtM  of  AiiMrks,  printod  it 
VttKwttr.  17BS. 

*  SMmt**  DI*d.  on  OowratiMt,  eh.  9,  f  4& 

*  Tkt  P(d«nUit,  N<x  !(.  •  M.  !7m.  SS,  1$. 

*  1  yrSmm't  Um  L«Gt.  SM  :  tU  P*dmlW,  Not.  «,  «1  Mr.  JsnWton  >h  de- 
cidedly in  CkTM  of  *  difMOB  «t  tiM  kgitlatiTv  fonfcr  into  two  taaefeM^  m  viO  to 


416 


CONSTirUTION  OP  THE  UKfTED  STATES.  [dooK  III. 


g  559.  Such  is  an  outline  of  the  general  reasoning  \>j  which 
tho  system  of  a  neparation  of  the  legiBlative  power  Into  two 
hrauchos  has  been  maintained.  Esperioact.'  has  shown  tliat  if  m 
all  casos  it  Iiao  not  been  found  a  complete  check  to  incouBidereto 
or  unconittitiitional  legislation,  yet  that  it  baa,  upoii  mtuy  ooca- 
sioos,  been  found  sufficient  for  the  purpose.  There  is  not  prtjlMi- 
blj  at  this  moment  a  single  State  iu  the  Union  which  would 
conafut  to  unite  the  tvro  bmnches  into  one  asaiembty,  though 
tJiere  haro  not  been  wanting  at  all  tiuie«  minds  of  a  high  order, 
which  have  been  led  by  entliuxiasm,  or  a  lovo  of  8im|)lioity,  or  a 
devotion  to  tljeory,  to  vindicate  «uch  a  union  with  arguments 
striking  and  plausible,  if  not  convincing. 

§  560.  In  the  oonvcntion  which  formed  Uie  Constitution,  upon 
the  resolution  moved,  ''that  the  national  l^^slature  oitgfat  lo 
consist  of  two  branches,"  all  the  Stotes  present,  oxG«])t  Pennsyl- 
rania,  votvd  iu  the  affirmative.'  At  a  subsequent  period,  bow> 
/  o^xir,  seven  only,  of  eleven  States  present,  voted  in  the  aflirmative, 
three  in  the  negative,  and  one  was  divided.'  But,  aithoagb  in 
the  convention  this  dirersity  of  opinion  appears,'  it  seems  proba- 
ble that  ultimately  when  a  national  goTcrmnuut  was  decided  on, 
which  should  exert  great  controlling  authority  over  the  States, 
all  opposition  was  withdrawn,  as  tho  existence  of  two  brancbefl 
furnished  a  greater  security  to  the  lesser  States.  It  does  not  ap- ' 
pear  that  this  division  of  the  legislativo  power  became  with  the 
people  any  subject  of  ardent  discussion  or  of  real  controversy. 
If  it  had  been  so,  deep  traces  of  it  would  have  been  found  in  the 
public  debates,  instead  erf  a  general  silence.  I'he  Federalist 
touches  the  subject  in  but  few  places,  and  then  principally  with 
reference  to  the  articles  of  confederation,  and  the  structure  of 
the  Senate*    Id  fact  the  oppooenta  of  the  Constitution  felt  that 

•*td«nt  from  ao  snininatwa  elhi*  Xotc*  on  Tfrginh(pi  IIi(),  ■iiJ  Mn  fwntqionilfaw 
•t  Ihit  psriod  shell  Uiia  faiiKt  wm  dbniwr-l.  2  Pitk.  Hut.  2SS.  t>>  Lolme.  in  liu 
•oifc  on  tbo  ConitlUiUoD  af  England,  hu  (th.  3,  pt  SI  t,  le. )  «onM  wry  irtTikitig  ro- 
mukion  tbtMinaMt^t,in  tlMpuMsoalmdrntod.  n«bMndihdi  "TlwrtMlti 
of  >  ditLdon  ut  Ihe  axeculiir*  poinr  a  dtlMr  s  mot*  at  )«m  apcady  MUtiliahin0nt  of 
Ibo  ijskt  of  th«  alrongevt,  or  ■  contiaaal  (UU  oT  ir>r ;  Ui*l  of  k  iliriuM  of  tfa*  It^a- 
IttlTo  powtr  U  tltbcr  trath  or  gcetnl  tnnqsUUty."  So*  klio  FlJtj'*  Homl  ud  PoUti- 
c*l  PhikMopfaj,  B.  «,  oh.  6,  T. 

>  Joitrnal  of  the  ConnniioD,  65 ;  X  Pltk.  Biak  ttS. 

•  Joaroal  of  Uu  Connetbo,  140. 

•  Yatw-i  MiauM,  i  BlUoi'a  D«1«te«,  M.  TS,  T<  :  Id.  87,  M;  8»;  ItL  134,  1SS. 

•  71.C  FodonlUt,  Kes.  93,  «S,  eS. 


CH.  vriK] 


tBE  LECISLATTKE. 


417 


there  vaa  ad<litional  security  fri<ron  to  the  States,  aa  Bmh,  by 
their  re|>re»enUitit>n  iu  Uiv  Sviiutv,  tuul  im  tlio  )ar^  Slates  must 
harcaonmnmndiii^  inlhicncc  upuu  tho  actual  buttU  in  tlio  IIoHBe, 
the  lesser  ritatos  cuiilil  not  but  uuit«  in  a  d<»iru  to  tauiutaia  tLoir 
uwu  equality  in  a  co-ordiiiato  branch.* 

§  5til.  llaviufT  coii8idorei]  the  g<^ii«ral  reasoning  by  whiuh  the 
division  of  tho'li'giitlativc  power  hits  bei-n  jiutilk-d,  It  miiy  be 
proper,  in  conclusion,  to  give  a  sumniary  uf  thoso  fn^unda  which 
were  deemed  most  important,  and  Vfli'wh  bnd  miwt  inl1ucnt!«  in' 
settling  the  actual  stnicturo  of  tlic  CoiiitlUiitiun  uf  the  UnittMl 
8ut«8.  The  question,  of  coiinic,  had  reference  alt4>)^tker  to  the 
eetaldishnient  of  thii  Semite,  for  no  one  doubted  the  iimpriely  of 
Mtahlishiiig;  a  House  of  liepresenlatives,  as  a  dcfHwitiiry  uf  the 
legislatirc  power,  howerer  much  any  miglit  differ  as  to  tlie  na- 
ture of  ttR  eouijiosition. 

^  biii.  In  onler  to  justify  the  existenco  of  a  senate  with  co- 
ordinate ]K)wirns  it  was  said,  first,  that  it  was  a  miafortime  in- 
cident to  n-piiblicnn  governments,  though  in  a  letis  dr-gree  than 
to  otiicr  goveranienta,  that  Uiose  who  adntiniittcr  then]  niay  for* 
get  their  ohitgations  to  their  constitnentu,  and  prove  uufaitlkful 
to  their  important  trust.  In  this  point  of  vinw,  a  srnnte,  as  a 
second  branch  of  the  legislative  asttenibly,  distinct  from  and 
dividing  the  power  with  a  first,  must  be  in  all  cases  a  salutary 
4JlgCiki>u  the  government;  It  doubles  the  security  to  the  people 
by  requiring  tiie  concurrence  of  two  distinct  bodies  in  nchcmcs 
of  usurjtation  or  perfidy,  whereaa  the  ambition  or  corruption  of 
one  would  otherwise  l>o  sufficient.  Thia  precaution,  it  was  added, 
was  fouudti)  (in  such  clear  principles,  and  so  well  undcratoud  in 
the  United  states,  that  it  was  8iii)crHu'MUi  to  enlarge  ou  it.  Am 
the  impi-obahility  of  sinister  combinationii  would  be  in  pmpor* 
tion  to  the  disHimtliirity  in  the  gimiits  uf  (he  two  1>odieH,  it  niiut  ^ 
be  i»o!itic  to  (listiui^iBh  them  from  eat'li  other  by  every  circuni- 
stance  which  would  couslst  with  n  due  hannouy  in  all  proper 
measuress  and  with  the  genuine  principles  of  repnblican  gov- 
iioni.» 

I  563.    Secondly.     The  necessity  of  a  senate  was  not  less  Jn- 
Teateil  by  the  prnpensity  of  all  einglc  and  nmnerniis  ns»t'mbliea 
to  yield  to  the  impulso  of  suddt'u  and  violent  jiossions,  aud  to  be 

>  Tlie  P'd-nlbt.  Xo.  3S  i  Id.  K<m.  37,  3H ;  Id.  Ka  19  ;  14.  No.  63. 

»  Till!  Fcii««iiji,  So.  ea. 

VOL.  I.  —  27 


c.l/u 


418 


CONSTITOTtON  OP  TUB  CmTBD  STATES.  [BOOK  UI. 


sedoced  by  {actioua  Icadcra  into  intemporatc  nnd  pernicious  rcso- 
lutiona.  Examples  of  thin  sort  migfat  bo  cited  without  uumbur, 
and  from  procL-vdiDp!  in  thu  United  f?tat«8  us  well  as  from  tbo 
histor}'  of  oth«r  uatious.  A  body  which  is  to  correct  this  ia- 
Grmity  oug'ht  to  be  free  from  it,  ond  oonitoqucntly  onght  to  be 
less  ntimcrouK,  and  to  po88c«8  a  due  degree  of  firranees,  and  s 
proper  t^-nurc  of  offioo.' 

§  664.   Tliii-dly.     Another  defect  to  be  supplied  by  a  senate 
lay  in  the  want  of  a  due  acquaintance  vith  the  objects  and  prin- 
ciples of  le^riKlation.     A  fi^od  govcniment  implies  two  things,  — 
fidelity  to  the  objcefa  of  the  government;  secondly,  a  knowledge 
of  the  means  by  which  those  objects  can  be  best  attained.     It  was 
,8agj;e«ted  that  in  IJie  American  govcmmentfi  too  Uttte  attention 
'liad  been  paid  to  tlie  last,  and  that  the  establishment  of  a  tietiate 
upon  a  pro]>er  basis  vould  greatjy  increase  the  chances  of  fidelity 
and  of  wise  and  safe  legislation.     What,  it  was  asked,  are  all 
the  repealing,  c^jilaining,  and  amending  laws,  which  fill  and  dis- 
grace our  Toluminoua  codes,  but  so  many  monuments  of  delicient 
.Tifldom,  so  many  impoachmcnta  exhibited   by  eaeh  suixiccding 
ragainst  eaeh  preceding  session,  so  many  admunitious  to  the  peo- 
ple of  the  ralue  of  those  aids  which  may  be  expected  from  a 
well-const itiitp<i  senate?" 

§  565,  Fourthly.  Such  a  body  would  prorcnt  too  great  a 
iDUtability  in  the  public  councils,  arising  from  a  rapid  succes- 
sion of  new  members,  for  from  a  change  of  men  there  must  pro- 
ceed a  change  of  opiniona,  and  from  a  change  of  opinions  a  change 
of  measures.  Such  instability  in  legislation  has  a  tendency  to 
■  diminish  respect  and  ci>nfldence  abroad,  as  well  as  safety  and 
prosperity  at  home.  It  has  a  tendency  to  damp  the  ardor  of  in- 
dustry and  enterprise,  to  diminish  the  security  of  property,  and 
to  impair  the  ro\'erencc  and  attachment  which  are  indispensable 
to  the  permanence  of  every  political  institution.' 

§666.    Fifthly.      Another  ground,   illu.slratiug  the  utility  of 

[a  senate,  was  suggested  to  be  the  keeping  alire  of  a  due  sense  of 

national  character.     In  respect  to   foreism   nations  this  waa  of 

vital  importance,  for  in  our  intercourse  with  them,  if  a  scmpii- 

loua  and  uniform  adherence  to  just  princi])K-8  were  not  observed, 

1  TtM  FtJaralUt,  Vo.  €t ;  PaUfa  IConl  ud  PolitiMl  PliUaMphr,  B.  0,  ck-  0.  7 ) 
S  ^lUcn'*  taw  Lert.  U*  to  HB. 

>  Tlu  Fedenlkt,  Ifo.  6X.  *  Id.  Ko.  6S. 


CB.  vni.] 


THR  LKUISLi^TORB. 


419 


it  mint  subject  us  to  many  embarnuifiments  nnd  collisloos.  It  ia 
difRoiiIt  to  imprcAS  upon  a  ninglo  VkkIv,  whiolt  \s  numerous  nnd 
changi;abt(>,  a  deep  seiuie  of  the  value  of  national  character.  A. 
small  portion  of  the  prsiiw  or  blame  of  any  particular  moaaurc 
can  fall  to  Uie  lot  of  any  particular  person,  nnd  the  period  of 
office  in  Ro  nhort  that  little  reaponaibility  is  felt,  aud  little  prid« 
is  indulged,  ao  to  the  course  of  tho  ^Ternni«^nt.  * 

§  567.  Sixthly.  It  wa«  urged  that,  paradoxical  as  it  might 
aecm,  the  want  in  fiome  important  case«  of  a  dne  renponiiibility 
in  the  government  arisws  from  that  vory  frequency  of  elections 
which  in  other  caaoB  proditcea  auch  rcapouaibility.  In  order  to 
be  reaflonahle,  responsibility  muat  be  limited  to  objecta  withis 
the  power  of  the  responsible  party;  and  in  ontrr  to  be  effeetnal 
it  mupt  relate  to  opcrationa  of  that  |>ower,  of  which  a  ready  and 
proper  judgment  can  be  formed  by  the  constituenta.  Some 
meaauren  have  singly  an  immi-^Iiatc  and  senaible  operation; 
otlters,  again,  depend  on  a  succession  of  well-connected  schemes, 
and  have  a  f^radual  and  pcrhajn  nnobHcrved  operation.  If,  there- 
fore, there  be  bat  one  aaacmbly,  cho«en  for  a  short  period,  it  will 
bv  diflltcult  to  keep  up  the  train  of  proper  mcasun'^,  or  to  prmeire 
the  proper  connection  between  the  past  and  the  future.  And  the 
more  numerous  the  body,  and  the  more  changeable  its  component 
parts,  the  more  difficult  it  will  bo  to  preserve  the  personal  re- 
sponsibility, as  wpU  as  the  uniform  action,  of  tho  imccessive 
members  to  the  grt-at  objects  of  the  public  woifaro.' 

§  568.  Lastly.  A  scnuto  duly  constituted  would  nut  only 
operate  as  a  salutary  cbcck  upon  the  repntteiiUttives,  but  occa- 
sionally upon  the  people  themselves,  against  their  own  tempo- 
rary delusions  and  errors.  The  eool,  deliberate  aenae  of  the 
community  ought,  in  all  governments,  tuid  actually  will  in  all 
free  t^vcramenta,  ultimately  prevail  over  the  views  of  their 
rulem.  But  there  arc  particular  moments  in  public  affairs  when 
the  people,  stimulated  by  some  irregular  passion  or  some  illicit 
advantage,  or  misled  by  the  artful  misrepresentations  of  inter- 
ested men,  ntay  call  for  measures  which  they  themselves  will 
afterwards  he  the  most  ready  to  lament  and  eondcmn.  In  thMO 
critical  moments  how  salutary  will  bo  the  interference  ctf  a  bt>dy 
of  rcsyicctablc  citixens,  chosen  without  reference  to  the  exciting 
cause,  to  check  the  misguided  career  of  public  opinion,  and  to 


420 


O0S8TITUTION  OP  TEB  UNITED  OTAraS.  [BOOK  lU. 


Ruspend  tho  Lilow,  until  rcaxoii,  justici^  out]  truth  can  regain 
tb«ir  authority  over  tlic  public  mind.'  It  voa  thought  to  add 
Rfeat  wi'i)ifht  U>  all  Iht^e  coiisidcrntinna  that  history  Um  infoniied 
ua  of  no  luug'livbd  republic  which  has  not  a  t)«uatc.  Sparta, 
Rome,  Carthage,  were,  in  fact,  the  onlj  atatea  to  whom  that 
character  can  ho  applied.' 

§  S69.  It  will  \m  obaerrcd  that  sontc  parts  of  (he  foregoing 
reaaoniug  apply  to  tho  fundamental  importance  of  an  actual 
iliviflion  of  tlie  Ingifilati^-c  power,  uud  other  parts  to  the  true 
prinoiploa  upon  which  that  division  should  l>e  sutwequentlj-  or- 
ganized, in  order  to  give  full  effect  to  the  conHtitutional  check. 
Some  pnrta  go  to  ahow  the  value  of  a  aenate,  and  others  what 
should  l>e  ita  stnicturc  in  order  to  insure  wisdom,  experience, 
ridolitjr,  and  dignity  in  its  niemlicrs.  All  of  it,  however  in- 
structa  us  tliat  in  order  to  give  it  fair  piny  and  inltuence  as  ft 
coordinate  hriinch  of  govemniont,  it  ought  to  he  less  numerous, 
more  select,  and  more  diiral>!e  than  the  other  hranch,  and  l>o 
chosen  in  a  manner  which  should  comliiue  and  represent  differ- 
ent iiiterrata  with  a  varied  force.'  How  far  theae  oltjocta  arc 
attained  by  the  Constttiilion  will  l>o  bettor  seen  when  tho  details 
belonging  to  each  de|>artmcnt  ar«  suocessircly  examiiwd. 

>  Tlio  PtJMntitt,  Ku.  63. 

•  The  Fedoralisl,  Sft  B3,  TIict*  are  some  rcry  rtrikin^  KDuIn  on  tliii  mfajtct  la 
the  rwMmtiiff  of  llie  canvciition.  in  the  oonntT  of  Fjucx,  cdlnl  to  oniitihlBr  th«  eoMtt- 
tiilloii  [irapotMl  fur  MaiMuhiuotli,  in  i;7S,*  nod  which  wiu  tntily  Hrctad.  "Tb* 
lt^»Ulire  (MW*)',"  ulil  llikl  bodj,  "mtut  not  1>»  Rv«Uil  wflli  on*  WMinlilf.  A  il^l* 
■ncmbly  ii  Cniiogiitly  inDLUMici^  hy  Uie  ricM,  rotlin,  jwniont,  and  prqjodina  of  am 
Indiriduol.  It  is  liaUe  to  \>e  anticioiu,  and  lo  eitnipt  itadT  front  Um  bcrdoiu  it  hja 
OS  Ita  coaaltocnta.  It  i*  tnbjcd  to  ambition ;  and  a/Ur  ■  ccria*  of  ytan  iHU  ba 
I'minpud  to  T«t»  IImII  |i*rp>tiiaL  Th«  lony  J\iriiaiiu»t  tn  Enttlaiid  TOtrd  ItatU 
IwrprtuJ,  and  Ifanvbf  for  ■  (iui  dMrofsiI  tlic  jiolilical  Ifbnrly  at  t^c  ■utij«<t.  Rat- 
tin-i  VII  gorenud  by  «n»  repwctatlTt  tattaahij,  aanaklly  dtcUd.  Tlwjr  anencBrdi 
roinl  thomMl*H  friHM  uwDal  to  Mptoinlal,  then  for  Hh ;  ind  finally  exBtttd  tb« 
paver  of  filllnit  iii>  all  TatMKbs  witlwnl  appUMtlon  to  thntr  conatlliMnla.  Tba 
gnraditncnt  of  HulUnd  ia  bow  a  tf rutifi  lAoagA  a  rqiutlit'  Tha  nault  «f  a  lini^ 
MHDUy  «ll]  b#  hau*  aad  iadjgaand,  ud  tMr  jttdgnamU  freqnoitl;  abmrd  and 
iBtoti*lMt4nt  There  muat  be  ■  aeorad  body  tn  nrite  whb  eoolncM  aad  (riidMii  and  la 
notrol  with  Hrmnna,  Endcfwndoit  upon  tbo  bnt,  tilhtt  t»  thdr  cnatjon  or  Mi«t«ne«> 
Yet  tliv  Gnt  mnal  retain  t  riffat  to  ■  limUar  ravUon  and  ouilnl  vrtr  Um  aeonai.' 

*  Tb*  FodctaliM,  »«L  01,  GL 

■  IiU0MUlaailaap«niptalHtaii(l(4  "Th*E>»MltM«ll."a>awwprinwdlnm9.  f 
1BM«  tha  pMM^  freoi  Mr.  9aTa|t«'a  ntnUi  K^irmitioa  of  tha  CoBnMDtkm  of  Manacha- 
wiu,  prtatel  la  tha  1I«*  En^and  U^^tat  4k  Hanh,  ISIS.  p.  ».  Sm  abo,  on  tbl>  anbjact, 
Paky'*  BtMtl  Fhlkapphr,  B..S.  ch.  T,  p.  ns  I  n*  FedamUtt,  Rot.  la,  es. 


CH.  Vni.]  THE  LEOISLATUBE.  421 

§  570.  Thia  discussion  may  be  closed  by  the  remark  that  in 
the  Romaa  republic  the  legislative  authority,  iu  the  last  resort, 
resided  for  ages  iD  two  distiDct  political  bodies,  not  as  braDches 
of  the  Bunie  legislature,  but  as  distinct  and  independent  legis- 
latures, ia  each  of  which  an  opposite  interest  prevailed.  In  one 
the  patrician,  in  the  other  the  plebeian,  predominated.  And 
yet,  during  the  co-existence  of  these  two  legislatures,  the  Ro- 
man republic  attained  to  the  supposed  pinnacle  of  human  great- 
ness.^ 

1  Th«  Federalist,  No.  34. 


V 


423 


OOKSTITDTIOlt  OF  THE  CKITED  6TAI£S.  [BOOK  ID. 


CEAPTER  IX. 


H0D8B  OF  RRPKESENTATITES. 


§  571.  The  second  Bcctiun  of  the;  firat  article  coatains  fho 
structure  aud  orgauizaliou  uf  tliu  IJuiuu  oi  Kcprcsontatires.  The 
fir«t  clmii«e  is  as  follows:  — 

"The  House  of  Representatives  sliivll  ho  com]>0)».-d  of  mcmbeni 
ohoscu  every  second  year  liy  the  people  of  the  nevoral  .Suites,  and 
the  electors  iu  each  Rtat«  sliall  have  the  qiuilirtcations  requisite  for 
electors  of  the  mo^t  numerous  hraiich  of  the  .State  h'iri8kture."(4i) 

§  572.  As  sooD  as  it  was  settled  tJiat  the  logiidative  power 
should  he  divided  into  two  separate  and  distinct  branches,  a  rory 
important  consideration  arose  in  n^rd  to  the  orf^nizution  of 
tlioee  hranchrs  res|)ectively.  It  is  obvious  that  the  organiziition 
of  each  in  auiiceptible  of  very  great  diversities  nnd  niodificalioiu) 
in  respect  to  the  principles  of  repreitentation,  the  qiialificatioD  of 
the  electors  and  the  elected,  the  term  of  Hen,'ico  of  (he  uicinbers, 
the  ratio  of  representation,  and  the  number  of  which  the  body 
should  l*e  com  posed. 

§  67S.  First,  the  principle  of  repreaentation.  The  Americtn 
people  had  long  been  in  the  enjoyment  of  the  privilege  of  elect- 
ing at  least  one  branch  of  the  legislature,  and  in  some  of  the  ool- 
oniea  of  electing  all  the  branches  compuBinfJ!  the  le^ittlatiire.  A 
bouse  of  repreaentstivea,  under  Turiuiis  denominations,  such  as 
a  house  of  delegates,  a  house  of  eouimooa,  or  aimply  a  house  of 
repreaontativea,  emanating  directly  from,  and  rcsjronfliblo  to,  the 
people,  and  ])ossesaing  a  distinct  and  independent  legislutive  au- 
thority, was  familiar  to  all  the  colonies,  aud  was  held  by  them 
iu  the  highest  reverence  and  rcsjiect.  They  justly  thought,  that 
as  the  government  in  general  should  always  hare  a  common 
interest  with  the  people,  and  be  adminiatercd  for  their  good,  so 
it  was  essential  t^i  their  rights  and  liberties  that  tlie  most  ntuncr- 
ous  hnnch  should  bare  on  immediate  dependence  uptm,  and 

(a)  A>  m  llu  fowtn  oC  Ooagna  cnw  Maii  elfctloat,  see  Ex  pMa  SbbtU,  100 
V.  S.  371 :  Gi  pwu  CiuU,  fl).  t»- 


CB.  IX.] 


BOOSS  OP  BBrREBCn-ATITES. 


42S 


AyiniMithy  vitli,  (he  people.'  Here  wu  no  novelty  in  this  view, 
It  was  nut  the  more  result  of  a  8t«t«  of  colonial  dependence,  in 
whicli  their  jealousy  was  awake  to  all  the  natural  encroachuicnta 
of  power  in  a  foreign  realm.  Thejr  huA  drawn  their  opiniuns 
and  principloa  from  the  practice  of  the  parent  country.  Tboy 
knew  the  ineotimahle  value  of  the  House  of  Commons,  as  a  com- 
ponent bi'anch  of  the  British  Parliament;  and  they  believed  that 
it  ha^l  at  al!  times  furnished  tho  best  security  against  the  op- 
pnssions  of  the  crown  and  the  ariatucracy.  While  the  power  of 
taxation,  of  revenue,  and  of  supplies  remained  in  the  hands  of  a 
popular  bmnch,  it  was  difficult  for  usurpation  to  exist  for  any 
length  of  time  without  check ;  and  prerogative  must  yield  to  that 
oeceBsity  which  controlled  at  once  tho  sword  and  the  purse.  No 
reasoning,  thcrt-forp,  was  necessary  to  satisfy  the  Auirrican  peo- 
ple of  the  advantages  of  a  ho»B«  of  representatives,  which  should 
emanate  directly  from  themselves;  which  should  guard  their 
interests,  support  thvir  rights,  express  tlicir  opinions,  make 
known  their  u-antit,  redress  their  grievances,  and  introduce  a 
pcn'sding  popular  influence  throughout  all  thu  0]>enitiuns  of 
tlie  government.  E.\pcrionce,  as  well  «a  theory,  had  settled  it 
Id  their  minds,  as  a  fundamental  principle  of  a  froe  govern- 
ment, and  rMiKfially  of  a  rx^'publican  goverumontf  that  no  laws 
ought  to  be  passed  without  the  co-operation  and  consent  of  the 
roprescntatives  of  the  people;  and  that  thvsc  representatives 
ihould  lie  ehiuen  by  Uiemselvea,  without  (he  intervention  of  any 
other  fnnctionaries  to  intercept  or  vary  their  responsibility.' 

§  i>74.  'ilie  principle,  however,  had  been  hitherto  applied  to 
the  political  organization  of  the  State  legislatures  only;  and  its 
applieation  to  that  of  the  federal  government  was  not  without 
some  diversity  of  opinion.  This  diversity  had  not  its  origin  in 
any  doubt  of  the  correctness  of  the  principle  itsvlf,  when  applied 
to  simple  republics;  but  the  propriety  of  applying  it  to  cases  of 
confederated  republics  was  affected  by  other  indc|wndcut  consid- 
vrationa.  Those  who  might  wish  to  retain  a  very  lan?e  portion 
of  State  sovereignty  in  its  representative  chameler  in  the  coun- 
cils of  the  Union,  would  naturally  desire  t'>  have  tlie  House  of 
Keprvsentativcs  elected  by  the  Htate  in  its  political  cluumct«r,  aa 

>  The  Ftiknlut,  ITo.  Si  I  1  BImL  Coaaa.  1».  1» :  P*le/>  Uonl  PUkMphjr, 
Bl  «,  ch.  7  :  1  WiIim'«  Li«r  UeL  <3>  ta  iS3  ;  I  WilMn'i  Law  Uct.  IXI  to  131 
■  I  Tnckcr'*  Bltdc  OiMm.  A|ip.  33. 


424 


CONSTtTimOK   OP  THB  ONITBD  BTAT^.  [itOOlf  III. 


nnder  the  old  confederation.  'rhofi«,  on  the  other  hand,  who 
vifthed  to  impart  to  the  government  a.  national  chunicter  would 
OS  natm-ally  dc^sire  an  inde|M!ndent  election  by  (he  )>o<>j>1i>  them- 
8clvi!«i  in  their  primary  me«ting8.  Prgbalily  tJiPse  ei ivum»tanc«8 
had  8omo  o]>cration  upon  the  votes  given  on  the  question  in  the 
convention  itself.  For  it  appoarti  that,  upon  tbt-  original  propo- 
sition in  the  convention,  "That  tlie  memtiei'a  oi  the  first  branch 
of  the  national  le^slnture  ought  to  be  elected  by  tlie  pnople  of 
the  several  States,"  aix  Elates  voted  for  it,  two  a^uinst  it,  and 
two  vere  divided.'  And  ujwn  a  aubacMjucnt  motion  to  strike  out 
the  word  "jieopie,"  and  insert  in  its  phico  the  word  " leg'talat- 
urc8,"  throe  States  voted  in  the  afiirmativc  and  eipht  in  the 
nejrative,*  At  a  subsequent  period  a  motion,  that  tlm  wpresent- 
atives  ahottld  bo  apfwinted  in  auch  manner  na  the  Ici^inluturo 
of  each  •State  sliould  dircut,  vaa  negatived,  aix  Sluii^  volin;;  in 
the  alVirmative,  three  in  ttiv  nL-jrative,  ajid  oue  JK-ing  divided; 
and  the  final  vote  in  favor  of  an  election  by  the  people  wu  de- 
cided by  the  vote  of  nine  Stated  in  the  ufGrmative,  one  voting  in 
the  negative,  and  one  being  divided-^  Tlie  result  waa  not  there- 
fore obtained  without  much  diiMiuKsion  and  argunK-nt,  though  at 
last  an  entire  unanimity  prevailed.*  It  is  satisfactory  to  know 
that  a  fundamental  priaoiplc  of  public  liberty  has  bit-n  thus  se- 
cured to  oursi'lves  and  our  jMstority,  which  will  foiiivcr  iudiMol- 
ubly  connect  the  intctx-'ata  of  the  jtooplo  with  ihotto  of  the  t'uton/ 
Under  the  confederation,  thougli  the  delegntcft  to  Congress  might 


>  Jo«mi«l  oT  CcmTOilMin,  Haf  31,  I7S7,  pfi.  SS,  84^  IS£  [  i  KUiot't  Dtbatn  {Yklcv's 
Uinuta),  i&- 

>  Jounial  of  CoDTKitiaa,  Ukj  31,  mj,  pp.  103.  IM  ;  4  Ctliot'i  l>Bb«M(l  V»U«'( 
ItisDUi),  «S,  83;  W.  01. 

*  Jonmal  <ir  CaavBalion,  Jmw  21. 1TS7,  pp.  140;  Ml,  SIS;  4  ElUat't  Da1»tMv  *», 
91  j{Y>tM'«  »ii)Utf«). 

*  Joun*!  ot  Caovention,  fp.  Slfl,  VS. 

*  Mr.  Buikf,  ia  bu  Itfllwtiaa*  on  the  Ficiicb  BaToIntioa,  Iim  tmtul  tlw  lulgeol 
of  the  mischicfi  of  ua  Indind  eboiee  onty  ij  the  pfopb  of  tlicir  Rjatmntulti-ea  in  • 

,  nuleriy  inuauer.     He  baa  dtnMiiMratod.  that  luch  a  «]r«l*in  mut  nnave  all  ml 

'  rwpanalbility  to  Itin  pfOfJ*  bom  tli«  n|««euiiftCivg,  Ui.  Jeirwiaau  liu  uprnted  hto 
apptotatioii  of  tlin  jirinolfl*  of  a  dinct  diol««  tii  ■  voiy  qwIUicd  nauMr.  Ub  ttyt : 
"  I  appcora  of  tbe  gnatn  bouse  bdng  cbown  b^  tlw  pwpio  dincily.  Pm  tlwagb  I 
thlali  a  bonir  n  cboirn  will  b*  vM]r  iornrioir  to  lb*  pvirat  Congiwr,  iciX/  (c  rrry  ill 
qiuUijlid  la  UyiJau/ar  iSd  Vnion,  lor  (<>n<i^  imtiaani,  tr..,  yvX  Ihii  «Til  ilo«a  not  wtlgli 
*^inil  iIm  gedd  or  i>rtmmiig  InvioUlr  Iba  fatKbanimta]  (iriuL-iiilo,  Ihal  ih*  pc<i|>l« 

,  Augbt  Bot  to  be  taxed  but  by  tvpratatjUiTa  duacii  Jnunodiatcdy  by  thanwalv**"  — 

IS  JafttMo'*  Conrop.  y.  2T9. 


CH.  IX.] 


HOUSE  OP  liePHeSI»TA-nTF». 


425 


have  been  elected  by  the  people,  lh«y  were,  in  fact,  in  nil  the 
rStateA,  «x<-ept  two,  elected  by  tbo  State  leg:ii}1at»re. ' 

§  iuH.  We  accordiu^ly  find,  tbat  in  the  acction  under  constd* 
eration,  tJie  Ilmise  of  ReprenenUtirca  in  iT<|aiivd  to  bo  roniposod 
of  n-prcspiitativea  choocn  by  the  people  of  tbo  SPveral  Htntes. 
I'lie  choice,  too,  ia  to  be  made  immediateir  by  tliem ;  rq  that  the 
power  is  dircc-t,  tlio  intUiencc  direct,  and  the  res|M>QHibility  di- 
rect. If  any  intortnudiate  agency  had  been  adojitcd,  snch  aa  a 
choice  through  an  electoral  college,  or  by  ofTicial  porBona^^,  or 
by  select  and  speciully  qnalified  functioonriefl  pfo  hne  vtcr,  it  is 
obviutu  tliiii  tbo  dependence  of  the  re  prose n tut  ive  u]>oa  the  peo- 
ple, and  the  responitibility  to  them,  would  have  been  far  loss  felt 
and  fur  more  obfltnicted.  Inditence  U'ould  have  niiturully  grown 
up  wilh  patronage;  and  liere,  ax  in  mnjiy  other  enses,  tbe  legal 
.mtxiin  woiil<l  have  applied,  eauM  proxima,  ncn  rtmota,  »peclattir. 
The  nele«"t  biidy  would  have  been  at  0Dc«  the  pAtroiu  and  the 
guidi^  of  the  ifpreiiontative;  and  the  people  thcnuelves  have  be* 
CODie  llie  inatnunentn  of  subverting  their  own  rights  and  (jowcr. 

§  .ITt!.  The  indirect  advantages  from  thiH  immedialo  agency 
of  tJio  people  in  the  choice  of  their  representatives  are  of  incal- 
cnlable  benefit,  and  deserve  a  brief  mention  in  this  phiec,  be- 
•oause  they  furnish  ua  with  maiter  for  mo^t  serious  rofiei;tioii,  in 
regard  to  tlie  actual  ojwraliona  and  influences  of  republican  gov- 
ernments. In  the  limt  jilaee,  tlie  right  confers  an  additional 
senae  of  personal  dignity  and  duty  upon  the  mass  of  the  ]>eople. 
It  gives  a  Btn>ug  direction  to  the  education,  studicA,  and  pur- 
suits  of  the  whole  community.  It  enlatp^s  the  sphere  of  action, 
and  contributes  in  a  high  degree  to  tho  formation  of  the  public 
manners  and  national  character.  It  procures  to  tho  common 
people  courtesy  and  sj-mpathy  from  tlieir  suiwriors,  and  diffusvs 
a  commoQ  conlidcnee,  aa  well  as  a  common  interest,  thrungb  all 
the  ranks  of  society.  It  awakens  a  desire  to  examine  and  sift 
and  debute  all  public  proceedingx,  and  thus  notirislios  a  lively 
curiosity  to  acquire  knowledge,  and,  at  the  name  time,  furnishes 
tlie  nietms  of  gratifying  it.  The  proceedings  and  debnles  of  the 
legishiture,  tlio  conduct  of  ptddic  ofliecrs  from  tlte  highi-jtt  to  tb« 
lowest,  the  character  and  conduct  of  tlie  executive  and  his  min- 
isterK.  the  nlmgifli-s,  intrigue)*,  and  conduct  of  dift'en>ni  parties, 
and  the  di^oiisitiun  of  tho  grv^at  public  nieasun?^  and  quesliona 

■  TliB  FcdonkliM,  No.  40. 


426 


CONSnumOlI  op  TBE   UHITKD   STATES.  [BOOK  lit 


which  Agitate  and  divide  tlic  community,  are  not  onlj-  freolj*  cao- 
I'tL^tod,  and  thus  improve  and  elevate  oonvenation,  but  they 
gradiinlly  furnish  the  mind  vitJi  safe  and  sniid  materials  for 
judgment  upon  all  public  affairs,  and  check  that  impetuositjr  and 
rashness  to  which  sudden  impulses  might  otherwise  lead  the 
people,  when  thej-  are  artfully  misguided  by  selfish  dem^oguea, 
and  plausible  schemes  of  change.' 

§  577.  But  this  fundamental  princii>Ie  of  an  immediate  choice 
by  the  people,  however  important,  would  alone  be  insufficient  for 
the  public  security,  if  tlio  riglit  of  choice  had  not  many  auxiliary 
guards  utul  accomimniments.  It  was  indispousaltlc,  secondly,  to 
provide  for  tli«  qualifications  of  the  electora.  It  is  obvious  that 
even  when  the  priiioiplc  is  eatablislicd  that  the  popular  branch 
<rf  the  legisluture  shall  emanate  directly  from  the  people,  tbero 
atill  remains  a  very  serious  fiuestjoo,  by  whom  and  in  what  man- 
uer  the  choice  shall  be  made.  It  is  a  quciitiou  vital  to  the  sys- 
tem, and  in  a  practical  souse  decisive,  as  to  Uie  diurability  and 
efficiency  of  the  powers  of  govorument.  Hero  there  is  much 
room  for  doubt,  and  ingi^nious  speculation,  and  theoretical  in- 
quiry upon  which  different  minds  may  arrive,  and  indeed  havo 
arrived,  at  very  different  results.  To  whom  ought  Uie  right  o£ 
suffrage  in  a  free  government  to  be  confided  ?  Or,  in  other  words, 
who  ought  to  1)6  j>ermitted  to  vote  in  the  choice  ul  tlio  represcn- 
tati%'es  of  the  people  ?  Ought  the  right  of  suffrage  to  be  abso- 
lutely universal  ?  Ought  it  to  ho  qualified  and  restraineil  1  Ought 
it  to  l>elong  to  many,  or  few  ?  If  there  ought  In  be  reittraints  and 
qualifications,  what  are  the  true  boundaries  and  limits  of  such 
restraints  and  qunlificatious? 

§  578.  These  questions  are  sufficiently  perplexing  axA  dis- 
quieting in  theory;  and  in  the  practice  of  different  states,  and 
even  of  free  states,  ancient  as  well  as  modom,  they  have  asAumed 
almost  infinite  varieties  uf  form  and  illustration.  Perhaps  tliey 
do  not  admit  of  any  general,  much  less  of  any  uni^'ersal  answer, 
so  as  to  furnish  ou  unexceptionable  and  certain  rule  for  all  sgua 
and  all  nations.  Tlio  manners,  habits,  institutions,  characters, 
and  pursuits  of  different  nations;  the  local  position  of  the  terri- 
tory, in  regard  to  other  nations;  the  actual  organizations  and 

<  I  httre  batrowfcl  thnc  rism  rroia  Dr.  Paley,  iml  Tou  ottljr  tkal  bf  *brii)git|g 
Uw«  I  hava  laMMd  tbdr  force.  ?titj't  Monl  FUiatofhy,  B.  0,  ch.  S.  Sm  Bba  S 
Wilaea'd  Uw  Uct  Ml  to  138. 


OB.  rz.] 


HOUSE  OP  REPRESENTATITK. 


4Zi 


clBMe«  of  societ)';  the  influeoow  of  peculiar  religious,  civil,  or 
political  intttttutions ;  the  dangers  fts  well  08  the  difTiculties  of 

itbe  timeii;  the  degrees  of  knowledge  or  ignorance  per^'adini;  tho 
mass  of  society;  tlie  national  temperament,  and  even  the  cltniate 
and  producta  of  the  soil ;  the  cold  and  thoujihtful  gravity  of  the 
Dorth,  and  the  warm  and  mercurial  exoitahility  of  tropical  or 
■ontliera  rctrifHUi, — all  tfae»c  may,  and  probably  will,  introduce 

fmodiricationH  of  principle,  an  well  as  of  opinion,  in  rq;ard  to  the 
right  of  auffragc,  which  it  is  not  easy  either  to  justify  or  to  over- 
throw.' 

§  S79.    The  most  strenuous  advocate  for  universal  suffrage  haa  i 
□ever  yet  contended  that  the  right  should  be  absolutely  uuirer'  j 

rBoL     No  one  haa  ever  been  sufficiently  visionary  to  hold,  that  all 

rpersons,  of  erei^  age,  degree,  and  character,  should  bo  entitled 
to  vote  in  all  elections  of  all  public  officers.  Idiots,  infanta, 
minoiB,  and  persons  insane  or  utterly  imbecile,  have  been,  with- 
out scniplc,  denied  the  riglit  as  not  baring  the  sound  judgment 
and  diseretion  lit  for  its  exercise.  lu  many  countries,  persona 
guilty  of  crimes  have  also  bceu  denied  the  right,  as  a  personal 
punishment,  or  us  u  security  to  society,  lu  most  countries,  fe* 
males,  whether  married  or  single,  have  been  purposely  excluded 
from  voting,  as  interfering  with  sound  pulley  and  the  harmony 
of  social  life  la  the  few  cases  in  which  tlicy  have  been  |>er- 
mitted  to  vote,  experience  has  uot  jiistiCed  the  conclusion  that  it 
has  been  attended  with  any  corre^poudent  advantages  either  to 
the  public  or  to  themselves.  And  yet  it  would  be  extremely 
dilTicult,  upuu  any  more  theoretical  reasoning,  to  catablish  any 

>  1  BUck.  Comin.  IH,  ITt.     Mr  SuMet  Bttebtona  (Id.  ITI)  hu  tnoBriced, 

"  That  lh«  ini*  trmoa  of  nqulrlafi  mj  qiMlUlwiion  with  Ttpai  to  (npttt;  in  nAart 

is  l«  nchiil*  luch  ixnow  ut  are  in  w  umbii  a  iitiiMlDB  lliU  Uw;  «m  Mtemwd  to  bar* 

>  wlU  nf  Umot  own.    If  Umw  p«ncaw  bvl  *oM^  Uwy  •uiU<l  U  Unptol  to  illqww  of 

[  tbtn  uniW  MmB  mdue  infliwitto  at  Mbn.    Thit  «««ld  gin  ■  gn«t,  ■■  arlfu],  or  « 

'wmldir  ma  *  Uf^(  ilara  In  •bctlon*  than  b  CMuirtMt  vltb  gtncfal  Ub«tty.     If  it 

'wm  prvtablf  thai  tnwy  nan  w«oU  ^t*  hi*  mta  (My  Md  witttmit  inflnenoo  of  uy 

kind,  then,  upon  tlic  tnio  ihrary  tad  pMiao  ptisdplca  of  litMrtr.  omry  momlicr  of  lbs 

■  Munonitr.  howTfpr  {uor,  *bould  have  a  vote  in  dtetiiig  tltoM  dolfgat**  la  irbea*  cliarp 

t  la  oanmiltcil  tlw  dupo«]  of  hU  propettir,  hU  Utxtt;,  ud  lu*  life.     Bat  dan  that  <ui 

^haril;  boaxpartMl  In  panoni  of  indigent  tariauat,  or  mch  m  «i«  nsder  tlw  ioMwliata 

Dtnim  of  atfaata,  all  popnlM  atalaa  hav*  Imw  obUfsd  to  •ataUIA  certaia  ^Mlliw 

'  lk<i%  wheittijr  aoMi^  who  sts  M>|Mtt«l  to  Imt*  no  triU  of  Uitirow*.  an>  ait^liukd  tnm 

( Totiog.  in  onk*  to  art  olh«r  luilirSdoali,  wbcaa  will  maj  be  Mppoaad  init«p«B>lrht,  nioi* 

UionMiKhly  upon  a  kvel  witli  muh  otbo-.'    Similar  leaMoinii  mlglii  b*  Mnpltjrcd  to 

[JuatUy  otharaxdoiloBa,  tmidn  UutolMindad  upon  ■  want  of  pniperty. 


4S8 


CONSTTTDTION  OP  TBB  DtOTED  6TATKS.  [BOOK  m. 


■t)«ti(!fncU>ry  priBcijiIo,  upon  whidi  tbo  one  h:ilf  of  every  eocietj 
'.has  tliuK  been  syittumattcallf  esctuclcd  by  the  other  half  from  all 
riglit  of  pnrtiei|Mitin|F  in  p»v«rnmt:nt,  whicli  would  not,  at  the 
same  time,  apply  to  and  juslifr  many  olhvr  exclusionit.  If  it  bo 
said  that  all  lueu  have  a  natural,  equal,  and  uualtenablv  riglit  to 
Tot«,  because  thoy  arc  all  bum  free  and  equal ;  that  tlicy  all  bavo 
common  ritrbt«  and  int«ro8ta  entitled  to  protection,  and  therefore 
have  an  equal  right  todoMde,  either  poreouaily  or  by  their  choMn 
rcprcsentntiTcs,  upon  tJie  laws  and  regiilations  which  shall  eoO' 
tro\,  meajtiire,  and  itiiHtain  those  rijdits  nnd  tnlorcsts;  that  tl»ey 
cannot  he  compel  led  to  sun-ender,  except  by  their  free  consent, 
wliat,  by  tJie  bounty  and  order  of  Providence,  belongs  to  tliem  in 
.  oomninn  with  all  their  race,  —  what  is  there  in  these  conaidera- 
Ititms,  which  is  not  efiually  applicalde  to  females,  aa  (reet,  intel- 
ligent, moral,  responsible  beings,  entitled  to  equal  rights  and 
interests  and  protection,  and  having  a  vital  stake  in  all  tltc  regu- 
lations and  laws  of  society  ?  And  if  an  exception  from  tJio  na- 
ture of  the  case  eould  l>e  felt  in  regard  to  persons  who  are  idiots, 
infanta,  and  insane,  how  can  this  apply  to  persons  who  are  of 
more  matunt  gron-th  and  are  yet  <leemed  minors  hy  the  mnnici- 
pal  law  ?  Who  has  an  original  right  to  lix  the  time  and  period 
of  pupils^  or  minority  ?  Whencn  was  derived  the  right  of  the 
ancient  Orccks  and  Romans  to  declare  that  women  should  be 
deemed  never  to  be  of  age,  but  should  !«  subject  to  perpetual 
guardianship?  Uiion  what  principle  of  natural  law  did  the 
Romans,  in  after  times,  fix  the  majority  of  femalM,  as  well  as 
of  males,  at  twenty-ftre  years  ? '  Who  lius  a  ri^ht  to  say  that  in 
England  it  shall,  for  some  imrjioses  be  at  fourteen,  for  others  at 
aevootevn,  and  for  nil  nt  twcnfy-onc  years;  while  in  Prance  a 
person  arrives,  for  ail  purposes,  nl  majority,  only  at  thirty  years, 
in  Naples  at  eighteen,  and  in  Holland  at  twenty-five?*  Who 
shall  say  that  one  man  is  not  as  well  quaiilied  aa  a  voter  at  eight- 
een years  of  age,  as  another  is  at  twenty-tivo,  or  a  third  ut  forty: 
Mid  far  better  than  most  men  are  at  eighty  T  And  if  any  society 
is  invested  with  authority  to  settle  the  mutter  of  the  age  and  sex 
of  voters  according  to  its  own  view  of  its  jioliey,  or  convenience, 
or  justice,  who  sliall  say  that  it  has  not  equal  antJiority,  for  like 
reasons,  to  settle  any  other  matter  regarding  the  rights,  ijnalifi- 
cations,  and  duties  of  voters  ?  * 

>  1  Black.  OMDtt.  <«3,  Ml.  ■  ItM.  *  Id.  ITL 


CH.  IZ.] 


B0U9B  OP  EKPRCSCNTATITBa. 


429 


g  580.  The  tmlh  'se«inft  io  be  tliat  the  right  of  voting,  like' 
man)'  other  rii^hts,  is  ou«  which,  whether  it  has  8  fixed  f»iiiKla> 
tlon  in  natural  Uw  or  not,  has  alwaj-s  been  treated  in  the  practice 
of  nations  as  a  Htrictly  civil  right,  dcritrd  from,  unil  rvf^ilated 
hy,  each  society,  according  to  its  own  circumstances  and  inter- 
ests.' It  is  difficult,  ov«n  in  the  atutract^  to  conceiTe  how  it 
could  hsTO  othcrwiso  been  trcutod.  The  tcmiH  and  conilitioiu 
upon  which  any  tux-icty  is  formed  and  orgnniitcd  mui«t  t;iuH'ntiully 
dcjicnd  u|xiii  the  will  of  those  wlio  arc  awoeiatvd,  or  at  least  ot 
those  who  cougtilute  a  niaj^jrity,  actually  cuntrolliu);  the  r^^st. 
Originally,  no  man  could  liuve  any  right  but  to  act  fur  hiuutelf ; 
and  th«  power  to  cliooso  a  cliicf  luagistrntc  or  other  oITiccr  to 
exercise  dominion  or  nutbority  over  others  as  well  as  himself 
could  arise  only  upon  a  joint  consent  of  the  others  to  such  ap- 
pointment ;  and  their  consent  might  Iw  qualified  exactly  accord* 
ing  to  their  own  interests  or  |Kiwer  or  jwlicy.  The  clioico  of 
representatives  to  act  in  a  legislative  capacity  is  not  only  a  re- 
finement of  much  later  stages  of  actual  aasoeiatiou  and  civiliim- 
tion,  but  could  scarcely  occur,  until  the  society  liad  assumed  to 
itself  the  right  to  introduce  such  institutions,  and  to  confer  such 
prinleges  as  it  deemed  conducive  to  the  ptiltlic  good,  and  to  pro- 
hibit the  existence  of  any  other.  In  point  of  fact,  it  is  well 
known  that  reprcHentatire  legislative  bodies,  at  least  in  the  form 
DOW  used,  an>  the  {wculiar  invention  of  modem  times,  and  were 
unknown  to  antiquity.'  If,  tlien,  every  well-oi^nizod  society 
has  the  riglit  to  consult  for  tlie  common  good  of  the  whole,  and 
if,  upon  tjio  principles  of  natural  law,  this  right  is  conceded  by 
the  \'ery  union  of  society,  it  scorns  dlfTicult  to  assign  any  limit  to 
ibis  right  which  in  compatible  with  the  due  attainmcut  of  the  end 
pn^MScd.  If,  therefore,  any  society  shall  docm  the  common 
good  and  interests  of  the  whole  society  best  promoted  under  the 
Lparlicular  cirrunwfauces  in  which  it  is  placed,  by  a  reslriclioa 
of  the  right  of  KutTrage,  it  is  not  easy  to  state  any  solid  ground 
of  objection  to  its  eserciae  of  such  an  authority.  At  lisast,  if 
any  society  has  a  clear  right  tn  deprive  females,  constituting  one 
half  of  the  whole  population,  of  the  right  erf  suffrage  (which,  with 
scarcely  an  exception,  has  Iwen  uniformly  maintained).  It  will 

>  1  BlKk.  Ctiniai.  171 :  2  WilMo't  Uw  U«t.  IW ;  H«iiW>qul««'»  Sflril  at  Ltn, 
B.  tl,  (b.  a ;  1  Tnckvt'i  HUck.  Comiu.  Apf.  U,  M. 
■  B«t  *Wi  AriUvU*'*  foUtic*. 


430 


CO.VBTITtTTION  OF  THK   UXnTD  OTAtZS.  [BOOE  ITI. 


require  some  antutencfw  to  find  upon  vhat  grotmd  this  exclusion 
can  he  vindicated,  which  doos  not  jiifltify,  or  at  least  excuse,  manjr 
other  exclusion!!.'  Government,  to  uae  the  pithy  Utit^af^  of  Mr. 
Burltp,  ha.1  hccn  deemed  a  practical  thin.?,  made  for  the  happioess 
of  mankind,  and  not  to  furnish  out  a  spectacle  of  anifomiity  to 
gratify  the  achemoa  of  visionary  politicians.* 

§  581.  Without  layiiip  any  stress  upon  this  theoretical  rvason- 
ing,  which  ia  brought  before  the  reader,  not  so  mucli  hucause  it 
solves  all  doubts  and  objections,  as  becauBc  it  presenls  a  view  of 
(he  serious  dirricultics  attendant  upon  the  oitsiiinplii.>u  of  nn  origi- 
nal and  uniitifUDblu  rif^ht  of  suffrage,  na  urigiiiuliitg  in  natural 
Inw,  and  iudcpcudcnt  of  civil  law,  !t  may  bo  pro{>er  to  state  that 
every  civiliwd  society  hiis  uniformly  fixed,  niodifitM),  and  regu- 
lated the  right  of  suHragc  fur  itself  according  to  its  own  free 
will  and  pleasure.  ETeiy  constitution  of  government  la  tbeao 
United  States  has  assumed  as  a  fiuidainental  principle  the  right 
of  the  people  of  Die  .State  to  alter,  abolish,  and  modify  the  form 
of  its  own  government,  according  to  the  sovereign  pleasure  of  the 
people.'  In  fact,  the  people  of  each  State  have  gone  iniu'li  far- 
ther, and  settled  a  far  more  critical  question,  by  deciding  who 
shall  he  the  voters  entitled  to  approve  and  reject  the  eonatitution 
framed  by  a  dolr^ted  body  under  their  direction.  In  the  adop* 
titm  of  no  State  coniititution,  has  the  assent  been  asked  of  any 
hnt  the  qualifiod  votera;  and  women  and  minors  and  other  per> 
sons  not  recognized  aa  voters  by  existing  laws  have  been  studi- 
ouHly  excluded.  And  yet  the  constitution  has  been  deemed 
entirely  obligatory  upon  them  as  veil  as  upon  the  minority  who 
voted  against  it  From  this  it  will  be  seen  how  little,  even  in 
the  mont  free  of  republican  ffovcrnmenta,  any  abatrsct  right  of 
Buffrogo  or  any  original  and  indcfeaHiblo  privilege  has  been  rcc- 
oguiicd  in  practice.  If  this  consideration  do  not  satisfy  our 
mindt^  it  ut  leoxt  will  prc|)arc  us  to  presume  that  there  may  bo 
an  almost  infinite  di^'«^sity  in  the  established  rigiit  of  voting 
without  any  State  being  able  to  assert  that  its  own  mode  is  ex- 
clusivfly  foundctl  in  natural  justice,  or  is  moat  conformable  to 
sound  policy,  or  is  best  adapted  to  the  public  Heeurity.     It  wilt 


>  Sm  Palrft  Moral  Phil.3aapli]r,  B.  t,  oh.  Ti  F^WS;  1  BUck. CmiitR.  171;  Moi' 
tnquicn'a  Sfririt  of  Lam,  B.  11,  cit.  0. 

>  Itttik*'!  Letter  to  tho  Sberiff*  of  BtMcl  In  1777. 
*  s)M  Lodw  oa  OonnuMBt,  f.i,^H9,  aj. 


CH.  IX.} 


noose  op  REPReSBNTATrVES. 


431 


teneh  us  Umt  tho  question  is  neceesarilj'  complex  and  intricate 
in  its  own  uutun),  itnti  is  scarcely  susceptible  of  any  Bimplc  solu- 
tion which  shall  rigidly  npply  to  tho  circomstances  and  condi- 
tion*, the  intercuts  and  the  fculii^ii,  the  imititutiona  and  the 
mniiners,  of  all  nntioiu.'  What  muy  brat  promote  the  public 
weal  and  secure  tito  puhlic  liburty  and  advance  the  public 
proflperity  in  on<>  age  or  nation  may  totally  fail  uf  itiinilar  rc- 
snlts  under  local,  physical,  or  moral  predicooii-nts  us»cutially 
dilTorent. 

§  5^2.  It  would  carry  mi  too  far  from  tho  imm«diato  object  <ji' 
thetw  commentaries  to  take  a  general  suney  uf  the  various  modi- 
ficaticMiB  under  which  the  Hglit  of  sufTragc,  cither  in  relation  to 
laws  or  magistracy,  orereii  judicial  controveraios,  has  appeared 
in  different  nations  in  ancient  and  modem  tinica.  I1ic  exam- 
ples of  Greece  and  Rome  in  Micicnt  times,  and  of  England  in 
modem  times,  will  Iw  found  moet  instructire.*  In  England,  the 
qualifications  of  voters,  as  also  the  modes  of  representation,  are 

rinus  and  framed  upon  no  common  principle.  The  counties 
are  represented  by  knights,  elwted  by  the  proprietors  of  lands 
who  are  freeholders;'  the  boroughs  and  cities  are  represented 
by  citizens  and  biii^esses,  or  others  chosen  by  tlie  citizens  or 
burgcsse*,  according  to  the  r|ualifications  prescribed  by  custom 
or  by  the  respective  charters  and  by-laws  of  each  borough  or 
city.*  In  these  the  right  of  voting  is  almost  infinitely  varied 
and  raodified.*(<t)  In  the  American  colonies,  under  their  char- 
ters and  laws,  no  uniform  rules  in  regard  to  the  right  of  auffrago 
existed.  In  some  of  the  colonies  the  course  of  the  parent  coun- 
try was  closely  followed,  so  that  fre«holder8  alone  were  voters;' 
in  others  a  very  near  approach  was  made  to  universal  suffrage 

'  Dr.  U«bor'«  Kaqrclopnlk  Ainidcui^  ail.  CotulUiititm. 

■  8m  S  Adam*'*  Amm.  Coiutilal.  UtlOT  8,  p.  SSS,  ftc  p.  ItO,  Ac ;  1  Bl*«k.  Camo. 
in,  172.  ITS ;  llMtMqiikii'*  Sfttii  of  Uwt,  Book  11,  di.  19 1  Id.  B.  1,  eh.  1. 

■  1  Bbck  Ctmm.  US.  178,  hiaj'*  ll«nl  FbOMofthr,  B.  fl,  cli.  7;  Dm  r«d«r- 
diit.  No.  ST. 

*  1  BlMk.  Camn.  17S  ta  97G :  I  Tnck.  VOtk.  Coouu.  App.  S»  to  UJL  Sm  alw 
Boike'*  RtOtcUaiM  od  tht  Fnnch  BoTolstliM. 

*  .S««  Dr.  UtUr-4  em9«^M(di•  AmarioMi.  uL  JOtOim!  Ormd  AOote,  OmmMm* 
timof. 

*  8m  MIcnon'i  Hotw  OB  nq[lnk,  Ul ;  ITkidui'iBhA.Oaiiuii.  App.  H  to  100. 


{a)  Bat  rfiMO  tli«a*  raounmtertM  wro 
wrttun  Rtfena  Acta  hsn  aluasHl  tlia 
bwi«  or  Mfiif*  ta  bi^iiid  vny  gnatly, 


kdinltttng  Iwp  wiDtbtm  to  tU  oxoltiM 
i>lM««N«xchided  bafoM,  ud  iBtradadiig 
nBUbiBi^  tn  ^Mliieatku. 


■132 


ooxsTiTcnox  or  tqe  unitbu  STATSit.         [book  m. 


amon};fho  males  of  compotont  age;  and  in  otborB,  again,  a  mid' 
die  principle  waa  adopted,  which  made  taxation  and  rotinf^  de- 
pendent upon  eaoh  other,  or  annexed  to  it  the  quiiHficatiun  of 
holding  some  [lerMonal  estate,  or  the  privilege  ol  being  a  free- 
man, or  the  eldest  son  of  a  freeholder  of  tjio  town  or  corpora- 
tion.' When  the  Uevoliition  brought  about  the  separation  of 
tlic  colonies  uiid  Ihey  formed  ihemaclves  into  iude|>eudeut  States, 
a  very  striking  diversUy  wa*  obacrt-nblc  in  th«  originul  conatitn- 
tiotut  adopt«d  bj'  thcui;^  and  a  like  diversity  has  i>ervaded  all 
the  constitutions  of  the  now  Stoteit  which  have  since  grown  up, 
and  all  the  re\i»ed  constitutions  of  the  old  States  nhicli  have 
received  t])c  Rnal  ratiflcation  of  the  pec^tc.  In  flomd  of  tho 
States  tlie  rijiiit  of  suffrage  depends  upon  a  certain  length  of 
residence  ami  payment  of  taxen;  in  olhers  uj>on  mere  citizenship 
and  reeidence;  in  others  upon  the  ponsosnion  of  a  freehold  or 
aome  entatc  of  a  particular  value,  or  upon  the  payment  of  taxes, 
or  performance  of  some  public  duty,  aueh  as  service  in  the  mili- 
tia or  on  Uie  highwajs.'  In  no  two  of  these  State  constitutions 
will  it  be  found  that  tlic  qnaUfieations  of  the  voters  are  settled 
upon  tlic  same  uniform  busis.'  So  llml  we  have  tho  most  abun- 
dant proofs  that  among  a  free  and  enlightened  people,  conrened 
for  tho  purjHHW  of  establishing  their  own  forms  of  government 
and  the  rights  of  their  own  \'oters,  the  question  as  to  the  due 
regulation  of  Uic  (|UAlification»  bus  been  deemed  a  matter  of  mero 
State  policy,  and  varied  to  inct-t  the  wanta,  to  suit  tlie  preju- 
dices, and  to  fosler  tlic  intci-cut^  of  (he  majority.  An  atwolnte, 
indcfwwibl©  right  to  elc«t  or  be  elected  secma  never  to  have  been 
asserted  on  one  side  or  denied  on  the  other;  hut  tho  subject  has 
been  freely  canvassed  as  one  of  mere  civil  |»otity,  to  be  arranged 
upon  such  a  basis  as  the  majority  may  deem  expedient  with 
reference  to  the  moral,  physical,  and  intellectual  condition  of 
the  particular  State.^ 

>  Sm  Chirtn  of  Bbod>  liUad.  1««1.  ouJ  Rbode  laUn-l  T*n  (edit,  tm)  p.  114. 
8m  «1w  Connnrtieul  ClurtFr,  IKS!,  ud  UtxsuhiiKlts  Chtrtcii,  iOS  *ii>l  ttti. 

*  i  Wibon'*  Lav  ImL  132  to  lU ;  fi  PiULin'i  IIUL  ch.  19.  pfi.  S»l  tt>  310. 

■  i  Wilaoo'*  Uw  [^t  113  to  138.  Ifr.  BuinD,  Ia  bit  lilra  ul  n  Vtitta  CoutiMa- 
treilili,  iiropown  (h»t  tlw  ntinwDlntivm  aboulil  b«  TrN^ldcn  of  jtSO  •  jcar,  wul 
bc«ueliul<kni  onrtb  /LbM.     1  Hqdw's  Kmys,  Eoajr  li,  p.  Hi. 

*  Sm  Uie  ftiUialul,  Ifu.  S4 1  S  WiUoa'a  Law  LcctoMi,  ISl  to  1)9 ;  S  PItkUi'i 
Rbt.  !s4t»31S. 

>  Or.  IJaboi'*  EaeydopNdk  AiiMrlcuiA,  wt  OnuUltUioiu  <tf  llk$  Vniud  JMil 
■n»  F«d«l«lbl.  Not.  illaU. 


CH.  IX.] 


BOmS  OP  RBPBESBNTATITES. 


438 


§  588.  It  was  under  this  known  diversity  of  ooDBtitutional 
provisions  in  regard  to  Stste  elections,  that  the  convention 
which  framed  the  Constitution  of  the  Union  was  assembled. 
The  definition  of  the  right  of  siifTrege  is  verj-  jiistljr  regarded  as 
a  fimdiunental  article  of  a,  republican  governnu>nt  It  was  in* 
ciinil>cnt  on  the  convention,  therefoi'e,  to  define  and  estalilish  tliis 
right  in  the  Constitution.  To  have  left  it  open  for  the  occasional 
regulation  of  CongreBS  would  have  been  improper,  for  the  reason 
just  mentioned.  To  hare  submitted  it  to  the  legislative  discre- 
tion of  the  States  would  hare  been  improper,  for  the  same  rea- 
son, and  for  tho  additional  reason  that  it  would  have  rendered 
too  dependent  on  the  State  governments  that  brancli  of  the  fed- 
eral guTcrnmcnt  which  ought  to  be  dependent  on  tho  people 
atcme.'  (a)  Two  modes  of  providing  for  the  right  of  suffrage  in 
tlie  choice  of  rcproscnlativos  were  presented  t«  the  considerfition 
of  that  bod)'.  One  was  to  devise  some  plan  which  should  operate 
naifarml}'  in  all  the  States,  on  a  common  principle;  the  other 
was  to  conform  to  the  existing  divcisitics  in  tho  States,  thus 
ereatii^  a  mixed  mode  of  representation.  In  favor  of  the  former 
coufBO,  it  might  be  nrged  that  all  the  States  ought,  upon  ths 
floor  of  the  Uousc  of  Rcprvacntativeti,  to  be  represented  equally: 

Ljthatthis  could  be  nceompliahed  only  by  (he  a<Io)>tion  of  a  uni- 
form quali0catioa  of  the  voters,  who  would  tbuB  express  the 
samo  public  opinion  of  tlic  same  l>ody  of  citizens  throughout  the 

.  Union ;  that  if  freeholders  alone  in  one  State  choMV  tlio  rcprosent- 

.  Uive,  and  in  another  all  male  citizens  of  competent  age,  and  in 
another  all  freemen  of  particular  towns  or  corporations,  and  in 

lUiother  all  taxed  inhabitants,  it  would  be  obvious  that  different 
Interests  and  classes  wonld  obtain  exclusive  representations  in  dif- 
ferent States,  and  thus  the  great  objects  of  the  Constitution,  the 

[promotion  of  the  general  welfare  and  common  defence,  miglit  bo 

fimduJy  checked  and  obstructed ;  that  a  uniform  principle  would  at 
It  bare  this  recommendation,  that  it  could  create  no  welUfoanded 

Ijealousies  among  the  different  States,  and  would  be  most  likely  to 
satisfy  the  body  of  tho  people  by  its  perfect  fairnesA,  its  permanent 
equality  of  operation,  and  its  entire  independence  of  all  local  legis- 
lation, whether  in  the  shape  of  Stuto  laws  or  of  amendments  to 
State  constitutions. 

I  TlM  r«knlUt,  Ko.  6S. 

(a)  Sm  the  Itth  uti  ISlh  AmtiidiMnto  to  tb«  Coiwtitatloii. 
Tot.  I.— 38 


CONBTITtrnOS  OP  THB  UNtTKD  STATES.  [BOOK  HI, 

§  584.  On  th«  other  hnnd,  it  might  b«  urged  in  favor  of  the  lat- 
ter eourec,  that  tlte  re<lucing  of  the  difTereiit  qualiGcation«,  already 
existing  in  tlie  ilifTercnt  States,  to  one  imifonn  rule,  would  tui^-e 
been  *  Tory  diflicult  task,  even  to  the  oonventiou  itself,  and  would 
be  dissatisfactory  to  the  people  of  different  States.*  It  would  not 
ho  very  easy  for  the  convention  to  frame  any  nilc  which  would 
satisfy  the  scru])1cs,  the  prejudices,  or  the  judgments  of  a  major* 
ity  of  its  own  members.  It  would  not  l>e  easy  to  induce  Virginia 
to  give  up  the  exclusive  right  of  freeliolders  to  vote ;  or  Rhode 
Island  or  Connecticut  the  exclusive  right  of  freemen  to  rote ;  or 
HassachuHctts  the  right  of  persons  posacssing  a  given  value  ctf 
personal  property  to  vot« ;  or  other  States  the  right  of  persons 
paying  taxes,  or  having  a  fixed  residence,  to  vote.  The  subject 
itscif  was  not  Ausoeptittle  of  any  very  exact  limitations  upon  any 
general  reasoning.  The  circumstances  of  different  States  might 
create  great  diversities  in  the  practical  ojieration  of  any  imiform 
system.  And  the  natural  attachmenhi  which  loii^  habit  and  usage 
had  sanctioned,  in  regard  to  the  exercise  of  the  riglit,  would  ciilM 
all  the  feolin-m  and  interests  and  opinions  of  c^-cry  State  againsk 
any  snbiitiiutial  change  in  it«  own  institutions.  A  great  embAT* 
rossmont  would  be  thus  thrown  in  the  way  of  the  adoption  of  the 
Constitution  itself,  which  perhaps  would  be  thus  put  at  bazard, 
upon  the  mere  ground  of  theoretical  propriety.' 

§  &S&,  Besides,  it  might  be  urged  that  it  is  far  from  being  clear, 
npon  reasuiing  or  «xi>cricnci>.  that  uniformity  in  the  composition 
of  a  reprcseutntirc  buily  is  cither  desirable  or  expedient,  founded 
in  sounder  policy,  or  more  promotive  of  the  general  good,  than  a 
mixed  system,  embracing  and  representing  and  combining  dis- 
tinct inteiixts,  classes,  and  opinions*    In  Knglond  tho  House  of 

1  Tho  F«d*tmlM,  No.  iS. 

*  EhvIb  oa  tbu  Comtitiitisn,  ok.  4,  p.  40. 

■  Mr.  hwik*  nMaifnUjr  tbou^t,  that  no  fjrttafnorreFnMeUUTC  gortniMMt  codd 
.  U  oT*  vfthout  m  Urgg  oitiMirtMn  at  AlBmrnt  pcmeiii*  mA  inttTrnta.  "Nothbig^" 
1  my*  ho,  "  li  a  dm)  ind  oiUqaal*  Tnimentatlon  of  a  Man  tbit  dooa  not  tvprtwnl  its 
■Ulily  u  ■«!!  u  it!  prapnrtj.  Bui  m  aMUl;  b  a  Tigoixnu  anil  nctlTB  piinri^,  and 
u  pfopcrt;  it  tlnggiib,  istrt,  aiid  liiiiid,  it  out  iMvor  l>«  wb  ftwn  ttiti  inTuioo  of 
Mlfljr,  naleMHbr.outofalliinipaniiMi.  pttdaminant  in  tli>n>|>rfwBtatMii."  BnrWa 
Beflwdnna  m  (h  Frviuh  Bcvotmloa.  8m  ako  ftbfi  Utatl  nOan^pky,  Ke.tit.7. 
In  a  tabae^ant  pig*  of  lii)  BcAcctlana  on  tlio  FrmIi  RcTolaiiAn,  hadittimat  Ilia 
lli*Q  bTorite  tlMoiy  vt  wpwwinUIloo  propowi  for  tho  coiuiiitiliim  of  Pniic*,  upon 
th«  ttjfde  baai  of  tcrrilarj',  populallon,  and  taxaUan,  and  ilmoimlniM  with  iirvat 
dMRMUk  iu  iManvtaionoe^  lae>|matity,  and  biwnaltXncy.    Th«  tvfnMnuUna,  too. 


CH.  II.] 


HOUSE  OF-  BeraEsexTATtrea. 


4«5 


CummonB,  aa  a  ropreaontatire  body,  is  founiled  u|>oii  no  uniform 
principle,  either  of  nuiubcnt,  or  clutw.ii,  or  places.^  The  represen- 
tutioii  is  madv  up  of  punioiiB  chimt-n  hy  clcctom  having  voir  differ^ 
cut,  Mild  xiMuethucs  verjr  di«conlunt  (juuhltcations :  in  sume  caiiea, 
pto|)erty  i«  cxcliwively  reppeaenli-d ;  In  otbore,  pHrticular  trades 
aud  pwsiiit^;  in  otli«i-it,  inhultituiicy  and  coipurute  privilc^s:  in 
others,  the  reverse.  In  soiitc  cmk*  the  rcpruseiitalives  arc  chusvn 
hy  very  numerous  voters  ;  in  others,  br  very  fow :  in  some  eases  a 
single  patron  iioBSCBBes  tJie  exchisive  power  of  chousinj?  represent' 
ativcs,  as  in  noiuinatiMi  borouglia;  in  others,  very  populous  citie» 
have  no  right  to  choose  any  representatives  at  all :  in  some  cases 
a  select  body,  forming  a  very  small  part  of  the  inhabituuls,  has 
the  exclusive  right  of  choice;  in  others,  Mon-r*;»idont8  can  control 
the  whole  election :  in  some  places  a  half-uiitlion  of  inhiihiUiuts 
possess  th«  right  to  choose  no  more  representatives  than  are 
assigned  lo  the  most  insignificant  liorough,  vith  scarcely  an  inhab- 
itant to  point  out  its  local  limits.'  Yet  this  ine<iiiality  has  net'er 
of  itself  been  deemed  an  exclusive  evil  in  Great  Britain.'  And  in 
every  system  of  reform  which  hai*  found  publicfavor  in  that  country, 
many  of  these  diversities  have  been  embodied  from  choice,  as  im- 
portant checks  u)>on  undue  legtslation ;  as  facitilaling  the  i-eprescn- 
totion  of  dilTerent  interests  and  different  opinions;  and  as  thus 
securing,  by  a  well-balanced  and  intelligent  representation  of  all 
the  various  clas!«es  of  society,  a  permanent  protection  of  tlie  pul)lic 

wn  to  i»  ehoMn  Indirwll;,  liy  tUctor*  tppoiiitod  by  clccton.  who  wor»  apin  fhooen 
liy  othor  electon;  "  The  member.'  tty*  Sir.  Itmfc^  "  who  gOM  to  the  nattooal  »• 
•emM J  i«  not  dioMti  bjr  tbe  people,  nor  acciyimuble  10  Ihem.  Tliei*  tn  tbrta  tl«rtjma 
bttM*  be  it  choten ;  two  kM  of  mm^ttnttt  ioVemm  bat«w«  falm  wd  tlie  primair 
■atmbly,  u  u  lo  rambr  libn,  u  I  ht*E  Mid,  m  mfaundDr  or  >  Ual*,  Mid  DM  IbS 
ItliTtvntMiTf  nf  th*  |>r»ti1e  wlUitn  •  rtalo."  So  modi  fix  mtn  tbecny  ta  the  hinda 
ef  Ttiionuy  uiil  ipMvbtiv*  itatnmpn. 

■  Ptlry'i  Uoral  niknophy.  V.  n.  eh.  7.  ^  UO.  Vn  to  90*  ;  De  Lohnc,  CmurL  oT 
SaRlaMd.  B.  1.  ch-  I.  n>-  <"■  0£  1  1  Kenfi  Omm.  2I»  ;  1  Tuck.  Black.  Ombid.  1^ 

sod,  tlQ,  211  ;  1  Wilaaii't  Uw  Lret.  W. 

■  Mr.  Jvin^nuD  is  hit  >r«ilt*  on  VIikIbU  (199},  ImM*  nth  peat  MmraUitNi  upon 
tW  irapiro]>ricly  of  alluwing  to  tl!ir«riml  ooimrlM  in  ihtt  Bute  the  mim  nambcr  dl 
npmtaUtiirei,  without  nny  rtffinl  to  thrir  rebtlne  popahtion.  And  yet  lu  tli« 
IMW  otunidtnthai  adoptrd  In  ISSft-ISSl.  Tfr^h  hM  adlwrrd  to  the  mw*  lyttem  In 

riaHpW,  ■D'l  her  prcstnt  Ttpr*ivii1atl«a  U  >pfwnian«d  npon  la  ■fUtmjr  and  Oil' 
qMl  hMift.  («) 
*  Buil:«*«  ttelloftlca*  on  llw  TVandi  Revolution. 

<<■}  I'ader  tbe  cetutitntiMi  of  Viigink  of  IBT3.  iMuton  Mid  lepnnanlKtini  ««r« 
^pottionod  bf  infnktion. 


436 


coNsrmmos  of  the  csitkd  statbi.         [book  ni. 


libertiM  of  the  people,  and  a  firm  security  of  the  private  rights  of 
p&Tfiona  and  property.'  Without,  therefore,  anseriing  Uiat  «uoh  n 
mixed  repreitentation  is  absolutely  and  under  all  circumatanoai 
the  best,  it  might  be  safely  affirmi'd  that  the  existence  of  varioua 
elements  in  the  composition  of  the  representatire  body  is  not  n^ 
oessarily  inexpedient,  unjust,  or  iit»ccure,  and,  in  many  cases,  may 
promote  a  wholesome  restraint  upon  partiul  plans  of  legislatioa, 
and  insure  a  vigorous  growth  to  the  general  interests  of  the 
Union.  The  planter,  tho  farmer,  the  meehaoic,  tho  merchimt, 
and  the  manufacturer  might  thus  be  brought  to  act  t*^cthcr,  ia  a 
body  representing  each ;  aad  thus  superior  intelUgeueo,  as  well  as 
mutual  good-will  and  respect,  be  diffused  through  the  whole  of  the 
collective  body.' 

§  586.  In  the  judgment  of  the  convention  this  latter  reasoning 
se«ms  to  have  obtained  a  decisive  influence,  and  to  huvo  estab- 
lished the  Gnat  result;  and  it  was  accordingly  declared,  in  tho 
clause  under  consideration,  that  "  the  electors  in  each  Stata  shall 
have  the  qualifioattons  requisite  for  electors  of  the  most  onnieroiu 
branch  of  the  8tato  legislature."'  Upon  this  clause,  which  was 
finally  adopted  by  a  unanimous  vote,  tiie  Federalist  has  remarked : 
**  llic  provision  made  by  the  convention  appears  to  be  the  beet 
that  lay  within  their  option.  It  must  be  satisfactory  to  every 
dtate,  because  it  is  conformable  to  the  standard  already  established 
by  tl>c  8tate  itself.     It  will  be  safe  to  the  United  States,  because, 


I  Ur.  VQton  in  hb  Lectnn*  (430  to  433),  eoiuidcn  ttic  inoqnali:^  of  nptrantts- 
tioa  la  Xia  IIoum  of  Cominnnii  u  a  pramlnont  defect  in  tlu  Britiah  gonnnMit.  Bui 
kit  obJvcUous  in  umiiily  urititl  t^nal  Iha  mod*  «t  apporttoniiif  tit*  nprMMtatiw, 
anil  not  aguiut  tho  ijuoliAcAtiont  of  the  roten.  In  the  r«fonn  mtm  andt*  Uw  «on- 
thbniloa  of  Puluimanl,  then  i*  ■  ytrj  gnat  divonitr  of  diKland  ^BkllBoallana 
iJto«(d,  and  apparanitr  aupfortad  bj  all  partita.  Mr.  Iturko^  In  hi*  HaAfctiaM  on 
tbt  FroDch  BcrolutioD,  holdit  doMriiw*  cmMtially  diArnnt  In  nany  points  froM  Kr. 
WiUon.  See  aba  in  Wynne'*  Eunotniu,  Dialogue  3,  H  '^  ''■  ^>  *»  ingoioua  da* 
tutsv  nt  th*  exbtinit  qrxtcm  In  Onai  Brilain. 

«  Sm  PttVa  UonJ  Pt>ili>M|ibT,  B.  a,  «b.  7,  p.  SBO;  Id.  »H.  8m  alao  FnaMln'i 
lUaftukai  3  Titk.  Hit*.  U%  Dr.  I>alay  haa  plaoed  Uw  iMqoaltUM  of  rvpnaintaltoii 
ia  Ui«  ijooat  of  Commonx  in  ■  strong  li^t ;  and  Iib  haa  atteniplad  a  TiikUaation  of 
thorn,  nbkli,  wlictber  tattifaetorx  or  not,  i*  at  Icaat  atgti  witli  groat  aldll  and  i^pm* 
Itjr  of  muoai^  PJcj't  Uotal  riiUMoplij,  B.  0,  dt.  7;  n^  9S1  t»  MOi  8m  alia  t 
PVIk.  Hl«.  S*S. 

*  Journal  of  OMimntian,  S10,  S3S.  ^a  daiiMv  hovartr,  did  not  paaa  vltlw«t 
opfoaltiaa  i  ■  motion  to  stfikc  out  waa  maila  and  Mgalirad,  aana  8lat«a  rotiAR  la  tlia 
MgUlTC,  «im  In  tbe  aSmutiva,  and  one  boiag  divfdid.  ioun.  «f  OoavanilaQi  7 
Aii(aiC  Ik  tU. 


CB.  IZ.] 


BOtTBB  OF  BCPSESKNTAnTES. 


487 


being  fix«d  bj  the  Sute  constitutions,  it  is  not  alterable  bj*  the 
State  governments,  and  it  cannot  bo  feared  that  the  people  of  tbe 
States  will  altor  Uiis  part  of  tlicir  constitutions  in  sucb  a  manner 
as  to  abridp;  the  Hfrhts  secured  to  tlicm  by  the  Federal  Constitu- 
tion.'* '  Tlic  rvm&rk,  in  n  general  sciisc,  is  true ;  but  tbe  provision 
has  not  in  fact,  and  may  not  hare,  all  the  soi^iritr  against  altera- 
tion b}'  the  State  governtnenta  which  is  so  confidently  afBrmed. 
At  tbe  time  when  it  was  made,  Coiuiecticut  luid  Rhode  Island 
were  aeting  under  the  royal  cliartera  of  1662  and  1663,  and  their 
g^hiturvs  potiscsaed  the  power  of  modifying,  from  time  to  time, 
lie  right  of  anfTri^r)!.  Rhode  Island  yet  continues  without  any 
written  constitution,  unless  the  charter  of  1663  is  to  be  deemed 
such,  (a)  In  Maryland  successive  Icgislatun-s  may  change  the  form 
of  government,  and  in  other  Htutdi  amendments  may  be,  and  in* 
deed  have  been,  adopted,  materially  varying  tlic  rights  of  8uf> 
[{rage.*  (A)  So  that  u>)«olute  stability  is  not  to  be  pn-dicatcdof  the 
•existing  modes  of  suffrage,  though  there  is  little  practical  danger 
of  tny  changes  which  would  work  unfavorably  to  popular  rigtits. 

§  687.    In  the  third  place,  the  term  of  aervioe  of  repreaentatires. 

In  order  to  insure  permanent  safety  to  the  liberties  of  the  peoplCt 

other  guards  are  indis[>enBable  besides  tJiosc  which  arc  derived 

from  the  exercise  of  the  right  of  sulTrage  and  representation.    If, 

when  the  legislature  is  once  ohosea,  it  is  perpetual,  or  may  last 

during  the  life  of  the  representatives,  and  iu  case  of  death  or 

resignation  only  the  vacancy  is  to  be  supplied  by  the  election  of 

new  representatives,  it  is  easy  to  perceive  that  in  such  cases  there 

will  be  but  a  very  slight  check  upon  their  acts,  on  the  part  of  the 

people.    Iu  such  coses,  if  the  legislative  body  should  be  once  cor- 

:  ruptcd,  the  evil  would  be  past  all  remedy,  at  least  without  some 

[tiolcnt  revolution  or  extraordinary  calamity.'    Bat  when  different 

lle^lativc  bodies  are  to  succeed  each  other  at  short  intervals,  if 

[the  people  disapprove  of  the  present,  they  m:iy  rectify  its  faults 

[by  the  silent  exercise  of  their  power  in  the  succeeding  election. 

)  TU  Ftadenlbt,  No.  a.    Sm  alw  >  EUiot'a  D*tetc^  SB ;  9  WIImu'i  U«  Lwt 
133,  180, 191. 

■  8rt  S  WUMit'*  Uw  UA  KM  (.4),  IM,  IST. 

*  1  BlKk.  Ccnus.  laS  1  lfM(««{attu'i  8plril  <J  I^n,  B.  11,  di.  S. 

(a)  Tbf  dwrtM-  of  Etbod*  Itknd  con-      ftannd  Dpoti  «  man  llbanl  btuit  of  nf- 
l^tisMd  to  be  its  oonMitalion  «f  gortni-      fnwi.  uid  na  HLaplMt  by  ifat  feo|  W. 
t  tiatll  1840,  wbcB  ■  «iHwtb«t)on  WM         W  ThU  la  ao  lonc>r  uw  of  UtrjUnd. 


438 


coKSTiTunoif  or  the  trsiitn)  stA-res.        [book  mi. 


Besides,  a  le^slatire  assembly  vbich  is  sure  to  be  separated  again, 
tad  its  members  soon  return  to  private  Ufe,vi]l  feci  its  own  ititer> 
eats,  as  well  as  duties,  bound  up  with  those  of  tJto  community  at 
large.'  It  may.  therefore,  be  safely  kid  down  as  a  fuuilamimtal 
axiom  of  republican  governments,  that  there  must  be  a  depend- 
ence on,  and  n'siionsibility  to,  tlic  jn-ople,  on  Uic  jjart  of  the  rep- 
resentative, which  Bhull  cuastuutly  exert  an  iiifluenco  upon  his 
acts  and  o|iinions,  and  produce  a  s}rnip«lhy  iH-twoen  lum  and  his 
constituents.^  If,  wlicu  ho  lit  oucc  oieclud,  he  holds  his  place  for 
lift.',  or  duriuK  good  behavior,  or  for  a  loug  period  of  yoaiii,  it  is 
ob%-ious  tliat  (here  will  be  Itttic  cITeclive  control  exercised  upon 
him,  and  he  will  soon  lenni  to  disregard  the  wishes,  the  interests, 
and  even  the  rit?hts  of  his  constituents,  whenever  (hey  interfere 
with  hiM  own  seltish  pursuits  and  objects.  When  appuinlcd,  he 
may  not,  indeed,  consider  himself  as  excliteivcly  their  rcpru>cut»- 
tivc,  bound  by  their  opinions  and  devoted  to  their  peculiar  local 
interests,  ollhou^h  Ihey  tuay  be  wholly  inconsij^tent  witJi  the  good 
of  tlie  Union.  He  ought  ratlier  to  deeut  himself  n  njprc«cntative 
of  the  nation,  and  bound  to  provide  for  ttu;  general  welfare,  and 
to  consult  for  the  general  safety.*  lint  still,  in  a  just  sense,  he 
ought  to  feel  his  respoitsibility  to  them,  and  to  act  for  them  in 
common  with  the  rest  of  the  people,  and  to  deem  hiukself,  in  an 
emphatic  manner,  thcii-  defender  and  tlieir  friend.* 
-  %  688.  Frequent  electiona  are  unquestionably  tJie  somtdcet,  if 
not  the  sole  policy,  by  which  this  dependence  and  aympnthy  and 
responsibility  can  be  effectually  secured.^  But  the  question  whftt 
degree  of  frequency  is  host  calculated  to  aocomplisli  that  object,  t» 

-'  >  1  8)*ck.  C^MniM.  18>. 
•  ■  Th«  Frdcnliri.  No*-  SS.  57. 

^  ■  1  Black.  Conuo.  1E9.  See  «Lp)  Dr.  Fmsklin'a  K«miuk* ;  3  Pltk.  lliil.  Hi ; 
BtwU  M  Con**.  t$,  33.  But  we  I  Tockar'i  Black.  Coiutn.  A|>|k  m ;  4  ElllM't  Dt- 
bMM.  909.  Ur.  Buil;i!  In  kU  kjiMefa  lo  tbt  olKton  oS  BriMc-l,  in  ITU,  kta  trtahd 
tlili  sabjeet  with  gnat  •Mtdcr  Bad  digiitt 7  and  kbiiitj'.  "  rariuiOMit."  luil  br,  "U 
not  a  ooDgnM  of  rnnSi-lfri  Irom  diAretit  and  ttvatlk  iktctmU,  wbieh  tulorrvU 
fneh  miist  mnintiilii  u  ui  i|pnt  and  adnx»t*  ^piaM  otIiRBtinnrii  and  ulvMatni.  But 
Parllninnit  U  a  <t«llbn«tive  OMiinbl;  cf  ob*  uatkm,  ultli  olio  iiilpnct,  tkat  of  llio 
wholu  i  nh«ro  uot  IomI  purpotM,  not  loeaJ  iirvJn'lK-m,  oniclit  U>  gBi<l«,  bat  Uib  geMral 
gijod  reaultitig  from  the  BBuem]  mhw  at  Kht  oliultf.  Yon  ctMoac  a  uenbcr  ladatd ; 
but  when  jroQ  hava  diaara  lui^  be  it  net  a  MMbw  of  BriMol,  but  ha  U  a  awihit  at 
Pirllainnit."  See,  on  tUiMlyrct.  ITnelc.  Dlaek.  Coata.  AppL  IDS;  I  Lknd'a  Dfb. 
fnl789.p^  l99U>-il7. 

*  8MBmt>''>8|>m<^(*tlMEUcicn«f  BtiiUlIami. 

•  ni  PedenOUt,  Moa.  S%  S7. 


CH.1X.] 


BOtJU  OP 


TATZTtS. 


489 


not  sasceptible  of  any  precise  and  univenial  answer,  and  must 
■  e8ii«nlin1lf  depend  upon  rery  different  vousidcratiotu  in  different 
natians,  and  vary  n-itli  their  size,  tbeir  a^re,  their  ctmdttions,  their 
inatittitiooa,  and  their  loi'al  peculiarities.' 

§  689.  It  baa  liccn  a  eurreut  ubM-Tvatiou  that  "  where  annual 
«lcctiooK  end  tymmy  begins."*  But  this  remark,  like  many 
Others  of  a  general  nature,  is  ofien  to  much  ()ui.'«itiou.  There  is  no 
prctenoo  tiiat  tliere  is  any  natural  eumivetiun  between  the  period 
of  a  year  or  any  other  exact  revolution  of  time  and  tJie  poIitit:al 
liaages  lit  for  gove-rnments  or  magUtrates.  Why  is  the  election 
a  magistraie  or  representative  more  safe  for  one  year  than  for 
two  years  T  For  one  year  more  than  for  sin  months  ^  For  six 
jinontlH  mnre  tlian  for  thre«  months  ?  It  i»  certainly  competent 
1  for  a  state  to  elect  its  own  nilei-a,  daily,  or  weekly,  or  monthly,  or 
annually,  or  for  a  lonj^r  period,  if  it  is  deemed  expedient.  Id 
thb  reapect  it  must  bo  or  ou^-bt  to  be  trovemed  by  its  own  con> 
▼enieaoo,  intercata,  and  safely.  It  is,  therefore,  a  qucation  of  sound 
policy  dependent  upon  circnnutances,  and  not  resolvable  into  any 
b^Molute  olemeiita  dependent  upon  the  revolution  or  return  of 
batural  seasunit.'  The  aim  of  every  political  constitution  is,  or 
ought  to  be,  first  to  obtain  for  rulers  men  who  possess  most  wis- 
dom to  disoern  and  must  virtue  to  pursue  the  common  fp>od  of 
the  society,  and  in  the  next  place  to  take  the  most  effectual  pre- 
cautions for  kcepin);  them  virtuous  whilst  they  continue  their 
public  trust.*  Various  mcnim  may  be  resorted  to  for  this  purpose ; 
and  duubllcas  one  of  the  most  eflicicnt  b  the  frequency  of  oloc- 
tjons.    But  who  is  there  that  will  not  perceive  upuu  the  sligfatest 

1  Dr.  Paloy.  with  ki*  iwn*l  firwtical  >enw,  liM  mmritH!  b  legard  t«  lb*  mmpoii* 
I  wtd  Ubdm  of  oSm  of  die  Btitldi  HaawoTCainmMii,  tb«t  "tbo  nnmtitr,  tk*  for* 
•sd  qwJUjr  of  tlio  ntMnUn ;  (k*  vuiMy  of  iuttmtU  ud  ckuubn  uuoi^ 

I ;  ofcuM  all,  OU  tempvmy  rf urafton  tf  their  ymirr,  tiiit  lb«  <Ji*iig«  of  DMD,  IthM 
rMwalcctioiipraduMa,  — nrBBainanr  ncurilin  to  tb*  piiblhv  •*  ^oU  a^llut  the 
abjmtlas  of  thdrindgmenta  to  ujr  eitpmal  dictatjon,  m  i^inst  tho  Gwmkliaa  «f  ■ 
in  ikMr  awa  badr,  nlfflcicntlr  powMful  to  ROTcm  tlicir  dDcUioDa.    The  njov- 
I  ue  •>>  imlcmlxMl  vitli  tb*  c««tilDenu,  nhI  t^  eowtlUMalt  wlUt  tbo  mt 
'  til*  peofJe,  that  tbef  ounot.  wlthonl  «  pattUily  tea  lUgruit  to  \>t  MidnrrJ,  tn- 
Fbm*  utf  banlfD  wpon  llie  mitrlKt.  in  wlii'li  llirj  'to  not  tliire  llii?inKli'<«.     Nor 
oly  oaa  Iha;  odoft  w>  ulrantaftros*  nlatioa.  Id  vhub  Ihsii  own  Inleitsb  wilt  not 
tipale  of  tlw  ailv>nlaic°."     I*4lr}-'i  MonI  DiUoHphy,  B.  A,  cb-  7. 

■  The  Fcdmlitt.  Ho.  SS.     So*  MontotqiiUu'a  Spirit  of  I^-ti,  B.  3.  ch.  8. 

■  TIk  Fodetnlbt,  >'os.  b%  S3  i*MoalMqiiktt'*  Sptrll  of  U>%  &  9,  fk.  Si  1  EUkt'a 
ZMalM,  30.  ai. ». 

*  TtM  F«d>im]Ut,  Ho.  67 ;  S  EUtefi  DtlMtM,  4S. 


440 


coKSTmmoN  op  the  chited  states.        [book  m. 


examinatjon  d  the  subject  what  a  wide  space  there  is  for  the 
exerdse  of  discretion  and  for  di^nraitf  of  judgmi>itt  ? 

§  590.  Witliout  prctcndinf^  to  go  into  a  complete  survvv  of  the 
subject  in  nil  it«  buiu-ings,  the  frequency  of  elections  amy  be  ma- 
t«riallj  affcvtcd  as  miUUtr  of  policy  by  the  extent  uf  the  popula- 
tioD  and  territory  of  a  country,  the  oonoentratiou  or  sparscneH  o£ 
the  population,  the  nature  of  the  ptir8uit«  and  employments  aod 
engagements  of  the  people,  and  by  Uio  local  and  political  situatjon 
of  the  nation  in  regard  to  contiguons  nations.  U  the  goremincnt 
be  of  email  cxt«nt,  or  be  concentrated  in  a  single  city,  it  will  be 
far  more  easy  for  the  citisens  to  choose  tlieir  rulers  freQiiently, 
and  to  change  them  without  mischief,  than  it  would  be  if  tlie  ter< 
ritory  were  large,  the  population  sparse,  and  tJie  means  of  inter- 
course few  and  liable  to  interruption.  If  all  the  inbabitania  who 
are  to  vote  reside  in  towns  and  villages,  there  will  be  little  inoon- 
venMUce  in  assembling  together  at  a  abort  notice  to  make  a 
dunce.  It  will  be  far  otherwise  if  the  inhabitants  are  scattered 
over  a  large  territory,  and  are  engaged  in  agricultural  pursuits, 
like  the  planters  and  farmers  of  tlie  Southern  and  Wcxteni  State's, 
who  must  meet  at  a  distance  from  their  reapcctivc  homes,  and  at 
some  common  place  of  aaaembling.  In  oases  of  this  sort  the  sac- 
rifice of  time  nccesBary  to  accomplish  the  object,  the  expenses  of 
the  journey,  the  imperfect  means  of  communicstiuo,  the  slow  pro- 
greoB  of  interchanges  of  opinion,  would  naturally  diminish  the 
exercise  of  the  right  of  suffrage.  There  would  be  great  danger 
under  such  circunuitaiices  that  tliorc  would  grow  up  a  general  in- 
diSerenoo  or  inattention  to  elections  if  they  were  frequent,  since 
they  would  create  little  interest  and  would  involve  heavy  charges 
and  burdens.  The  nature  of  the  pursuits  and  employments  of  the 
people  must  also  have  great  influence  in  soltling  t)ic  qui^ion.  If 
the  mau  of  the  citizens  arc  engaged  in  employments  which  take 
them  away  for  a  long  period  from  home,  such  as  employments  In 
the  whale  and  cod  fiBheries,  in  the  fur  trade,  in  foreign  and  distant 
commerce,  in  periodical  caravans,  or  in  other  pursuits  which  re- 
quire constant  attention,  or  long-continued  lahors  at  particular 
Heasons,  it  is  obvious  that  frequent  elections  which  should  inter- 
fere  with  their  primary  interests  and  objects  would  be  at  once  hi- 
conveniont,  oppressive,  and  unequal.  T3icy  would  enalile  the  few 
to  obtain  a  complete  triumph  and  ascendency  in  tlie  affairs  of  the 
State  over  the  many.    Besides,  the  frequency  of  elections  must  be 


CB.  IX.] 


B0D8B  OP   BEPBESENTATTVES. 


441 


subject  to  other  cooaiderations  affecting  the  general  comfort  and 
convenience  aa  well  of  ruliira  as  of  electora.  In  the  bleak  regions 
of  Lapland  and  the  farther  north,  and  in  the  sultry  and  protracted 
heats  of  the  south,  a  due  rapard  must  be  had  to  the  health  of  the 
inhabitants  and  to  the  ordinary  means  of  travollin);;.  If  the  terri- 
tory be  Urge  the  rcpresontutircs  must  come  from  great  diatances, 
and  are  liable  to  bo  retarded  by  all  the  v-arictit-a  of  cUmate  and 
geotogicsl  featurca  of  th«  coimlry,  by  drifts  of  impnaaablo  anowa, 
by  sudden  inundntiona,  by  chains  of  mountains,  by  cxtcnsivo 
prairioH,  by  numerous  streams,  by  aaudy  deserts.' 

§  691.  The  task  of  legislation,  too,  is  exceedingly  difTerent  in 
a  email  state  from  what  it  is  in  a  largo  one ;  in  a  state  engaged  in 
a  single  pursuit,  or  living  in  pastoral  simplicity,  from  what  it  is 
in  a  stat«  engaged  in  the  inlinitely  raricd  einploymcnta  of  agri- 
culture, manufacture,  and  commorce,  where  enterprise  and  capital 

^Tapidly  circulate,  and  new  legislation  is  constantly  rei]uircd  by 
the  new  fortunes  of  society.  A  aingle  weok  might  suRioc  for  the 
ordinary  legislation  of  a  State  of  the  territorial  extent  of  Rhode 
laland,  whiln  several  month.^  would  scarcely  sullioe  for  that  of 
New  Yorle.  In  Great  Britain  a  half-year  is  consumed  in  legisli^ 
tioB  for  its  diversified  interests  and  occupations ;  while  a  week 
would  accomplish  all  that  belongs  to  that  of  Lapland  or  Green- 
land,  of  the  narrow  republic  of  Gcncvn,  or  of  the  subordinate 
principalities  of  (icrmany.  Athens  might  legislate,  without  ol^ 
fltrocting  the  daily  course  of  ounmon  buainesa,  for  ber  own 
meagre  territory ;  but  when  Rome  had  become  the  miatresa  of  the 
world,  thfl  year  seemed  too  short  for  all  the  exigencies  of  her 
Bovereignty.    When  ahe  deliberated  for  a  world,  she  felt  that 

.legislation,  to  be  wise  or  safe,  must  be  slow  and  cautious  ;  that 
Dowledge  as  well  as  power  was  indispensable  for  the  true  go^tim- 
ment  of  her  provinces. 

§  592.  Again,  the  local  position  of  a  nation  in  regard  to  other 
nations  may  require  very  different  courses  of  legislation  and  ver;' 
different  intervals  of  elections  from  what  wontd  be  dictat^Ml  by  a 
ease  of  its  own  interest  and  convenience  under  other  circunw 

'ttances.  If  it  is  surrounded  by  powerful  and  warlike  neighbors, 
its  own  government  must  be  inreatcd  with  proportionately  prompt 

[■means  to  act  and  to  legislate  in  order  to  repel  aggressions  and 
aecuro  its  own  riglits.    Frequent  changes  in  the  public  councils 

■  1  EUiot't  D«1»tM^  SS,  AoM*'*  Sp«aek 


442 


coNSimmcw  op  thu  dmted  states.        [book  ul 


miglit  not  ooly  Ivave  U  exposed  to  the  hnzard  of  baviug  no  cfK- 
civDt  budf  In  eiistvnce  to  net  upua  any  sudtlcn  ouivrgcncjr,  but 
a.la»i  l>y  Oh:  fluctuations  of  opinion  nucoiwurilj  growing  out  of 
tbcse  cluuigus,  intruducc  imbccilil}',  irivftululion,  and  tliv  want  of 
duo  iuformntion  into  those  councils  itvu,  to  net  with  vigor  and 
cfl'cot,  must  have  time  to  umtiire  mca«ui-i?«(  and  judgmfint  aod 
CxpL-ricncc  as  to  the  l>Cflt  method  of  iippij-ing  IIk-iu.  I'ttey  must 
not  bv  hurried  oo  ta  their  eoiic)u»ioii«  by  the  pa«»it>uii  or  the  fears 
of  tJio  inullilude.  lliey  mimt  deliberate  as  well  a»  resolve.  If 
the  powor  drups  from  ihcir  hundtt  iK-fore  thej-  have  an  opportunity 
to  curr}-  any  system  into  full  u(rtM;t,  or  even  to  put  It  on  it3  trial, 
it  is  impussibic  (hat  foreign  nutiona  should  not  be  able  by  in- 
triguw,  by  false  alarms,  and  bj  corrupt  iaflueuoes,  to  defeat  Uie 
vJBcst  mcasun^  uf  the  best  patriots. 

§  593.  One  other  consideration  of  a  general  nature  deaerre* 
attention.  It  is  tliat  while  on  the  one  hand  conatantly  recurring 
elections  uJfurd  ft  great  security  to  public  liberty,  they  are  not,  on 
the  other  hund,  without  some  dangers  and  iDconveuitinoes  of  a 
formidable  nature.  Th«  very  freiguency  of  elections  has  a  ten- 
dency to  create  agitations  and  disitensiuns  in  the  public  mind,  to 
nourish  factions  and  encourage  restlessness,  to  furor  ru«h  innova- 
tions in  domestic  legislation  and  public  policy,  and  to  produoe 
riolent  and  sudden  changes  in  the  administration  of  public  affairs 
founded  upon  temporary  excitements  and  prejudices.' 

§  5M.  It  is  plain  that  some  of  the  considerations  vrhioh  have 
been  stated  must  a{)ply  with  very  dilTerent  force  to  the  condJtkta 
and  interests  of  different  states,  and  they  demonstrate,  if  not  tlie 
absurdity,  at  least  the  impolicy  of  laying  down  any  geticnd  niaxini 
as  to  the  frequency  of  elections  to  legislative  or  oUier  ofhccs.' 
There  is  i]uilo  as  much  absurdity  in  laying  down  os  a  general  role 
that  where  annual  elections  end  tyranny  begins,  as  tlicre  is  in 
saying  that  the  people  are  fi'ee  only  while  they  are  choosing 
their  lepreseatatiTes,  and  slaves  duriug  the  whole  |ieriod  of  tlieir 
serrice. 

§  595.  If  we  examine  this  matter  by  the  light  of  hi»tory,  or  at 
least  of  that  portion  of  it  whicb  is  best  entitled  to  iuKtruct  us  on 
the  point,  it  will  bo  found  tliat  there  is  no  uniformity  of  practice 
or  pruici]4e  among  free  nations  in  rcfjanl  to  elections,    tn  Gog- 

<  8m  Mr.  Amw'*  8pM«l>.  1  Klllot't  P«t<UM,  SI.  U ;  Ai»a'<  VToHu,  90^  ti- 
*  HoBMi]Uin>'a  Spidt  ot  Umh  a  S,  «L  S  ;  1  EUM's  IHUUt.  M  t«  4L 


CH.  IX.] 


DOtrSB  or  BEPBESENTATtTBS. 


44d 


I«nd  it  is  not  e^sy  to  trace  out  uiy  very  dcoided  course.  Tito  liis- 
torv  of  PftrliamoDt  alt«r  Magna  Charta  proves  that  that  body  had 
been  aceustotnod  usually  to  assemblo  once  a  year;  but  as  tJiosc 
8«8«ionft  wer«  dc|)endcnt  upon  ih«  good  pleasure  and  discn-tion  of 
th«  crovR,  very  long  and  inconvenient  intcrniisitioiis  occasionally 
occurred  from  royal  oontrivaoce,  ambition,  or  policy.*  But  even 
wIku  Parlinnioui  was  accuntonied  to  sit  erery  year,  tlio  Dioinlieni 
wt^ro  not  ohosen  every  year.  On  tlic  contrary,  as  Utc  diftAnliitiou 
of  Pnrlianipnl  was  solely  dependent  on  the  will  of  tlie  crown,  it 
might,  and  fonnrrly  it  somrtin>c8  did.  happen  that  a  single  Parlia* 
ment  lasted  through  the  wboli>  life  of  the  king  irho  conventMl  it.' 
To  remedy  th<>f(e  grievances  it  waa  provided  by  a  otatuto  passed  in 
the  reign  of  Charles  the  Se4!onc),0iat  the  intcmiissiunH  should  not 
bo  protracted  beyond  the  period  of  three  years ;  and  by  a  subse- 
qaent  statute  of  William  and  Mary,  that  the  same  Parliament 
should  not  sit  longer  than  three  years,  but  be  at  the  end  of  that 
period  dissolved  and  a  new  one  elected.  This  period  was,  by  a 
statute  of  George  the  First,  prolonged  to  seven  years,  after  an  ani- 
mated debate  ;  and  thus  septennial  became  a  substitute  for  triennial 
Parliaments.^  Notwithstanding  the  constantly  jncroasing  tuQuonce 
of  the  House  of  Commons,  and  its  popular  cast  of  o[iinion  and 
action,  more  than  a  century  has  elagiscd  witjiout  ajiy  successful 
effort  or  even  any  general  desire  to  change  the  duration  of  Parlia- 
mi>nt.  80  that  as  the  EnglUh  constitution  nuvr  stands  the  Parlia- 
ment must  expire  or  die  a  natural  death  at  the  end  of  the  seventh 
year,  and  not  sooner,  unless  dissolved  by  tlie  roya!  prerogative* 
Vet  no  mnn  t<ilerahly  well  acquainted  with  the  hitttury  of  Great 
Britain  for  the  lost  century  would  venture  to  afhrm  that  the 
people  had  not  enjoyed  a  higher  degroe  of  liberty  and  induence  in 
ail  the  proceedings  of  the  government  than  ever  existed  in  any 
antecedent  period. 

§  .IIW.  If  we  bring  our  inquiries  nearer  home,  it  will  bo  found 
that  the  history  of  the  American  colonics  before  the  Revolution 
affonis  an  equally  striking  proof  of  the  diroraity  of  opinion  and 
iisage.  It  is  very  well  known  tliat  the  principle  of  representation 
in  one  branch  of  tlie  legislature  was  (as  has  already  been  stated) 

1  Tb*  FtdFnlict.  No.  ax.  *  1  TtUek.  Omdhi.  l»,  lad  mM. 

*  1  Rkck.  Lomm.  I»9  ;  Tfat  Padai^M,  Vo*.  M;  M  i  1  Ellicfa  DabatM^  9T,  «B ; 
S  miot't  DrlMt'^  4S. 

*  1  Black.  Coiun.  1S9 ;  The  TeitnlM.  Bo.  SI 


444 


CONRTtTUnOK  OP  THE  UKtTBD  STATES.  [bOOE  HI. 


CBtablished  in  all  tJie  fiolonien.  But  the  periods  of  election  of  Uie 
repreBpntativea  were  very  different.  They  raried  from  a  half-year 
to  seven  yeare.  In  Viripnia  the  elections  were  septennial ;  in 
North  and  South  Carolina,  biennial ;  in  Masnachuiiettii,  annual ;  in 
Connecticut  and  Rhode  Island,  semiannual.*  It  haa  been  Tery 
justly  remarked  by  tho  Foderaliat,  that  there  is  not  any  reason  to 
infer  from  tho  spirit  and  conduct  of  the  represenlatiros  of  the 
poopto  prior  to  tho  Revolution,  that  biennial  flections  would  have 
been  dangerous  to  tho  public  liberties.  The  spirit  vhidi  every- 
where dbtpluycd  itself  at  the  comineiiccment  of  tlic  stnii^lc,  and 
whieh  vauquishcd  the  obetncica  to  indoi>cndcuce,  is  the  best  of 
proofs  that  a  aufficjent  portion  of  liberty  had  been  e^-crywhore 
enjoyed  to  inspire  both  a  sense  of  its  worth  and  a  ceal  for  its 
proper  enlargement.  This  remark  holds  good  as  mcU  with  regard 
to  the  then  colonic*  whose  elections  were  least  frequent  as  to  tJioee 
whose  elections  were  most  frequent.  Virginia  was  the  colony 
which  stood  lirst  in  resisting  tlic  parliamentary  encroachments  of 
Great  Britain  ;  it  was  the  first  also  in  espousing,  by  a  public  Mt| 
the  resolution  of  indeix-ndence.  Yet  her  house  of  representatives 
was  septennial.*  When,  after  the  Revolution,  tJie  Stales  freel/ 
framed  and  adopted  tlioir  own  constitutions  of  government,  * 
similar,  though  not  so  mnriced  a  diversity  of  opinion  was  exhib- 
ited. In  Connecticut,  until  her  recent  constitution,  the  repre- 
sentatives were  choMn  semiannually ;  in  Rhode  Island  they  are 
still  chosen  semiannually ;  (a)  in  South  Caroiiria,  Tennessee,  North 
Carolina,  Missouri,  Illinois,  and  Iiotiisiana,  they  are  chosen  bien- 
nially :  and  in  the  rest  of  the  .States  annually.'  And  it  has  be<n 
jitittly  observed  in  the  Federalist,*  that  it  would  not  be  easy  to 
show  tliat  Connecticot  or  Rhode  laland  is  better  governed,  or  en- 
jay»  a  greater  share  of  rational  liberty,  than  Soutli  Carolina  (or 
any  of  the  other  States  having  biennial  elections),  or  that  either 
the  one  or  the  other  of  these  States  is  distinguished  in  these  re- 
spects and  by  theoe  causes  £rom  the  States  whose  elections  oro 
different  from  both. 

t  The  Pnlmlid,  Ifo.St;  I  Edlofa  DvIiMm.  U,4Si  S  lUiot'a  DebttM,  IS;  9 
KUM*  JMMa.  40. 

■  Th«  r*d««alU),  NcL  C3. 

■  Dr.  UtUr't  Sncycl.  An«fie■ai^  ut.  amMhMtmi  tf  tin  VkOtd  SMm;  8  KlUot't 
DsttttM,  SM;  1  Ktal'i  Coata.  SIS. 

*  Th«  P«du*lMt,  Ko.  03  i  S  Eltiot'*  DobaUs,  im. 

(a)  Thb  b  nM  nam  Xtw. 


OB.  IX] 


HOUSE  OP  RBPSESENTAnTES. 


44S 


§  597.  TttMC  rcnuirkB  arc  auflidcnt  to  MtabliBh  tho  futilitf  of 
the  maxim  a]lii<Icd  to  respecting  tlic  value  uf  annual  uluctiuns. 
The  <)ue«t)on,  how  frequent  elections  ahould  be,  and  what  should 
be  the  term  of  service  of  representatives,  cannot  be  answered  in 
aay  universal  form,  applicable  to  all  times  and  all  uatiuiu.'  It  is 
very  complex  in  its  nature,  and  must  ultimntel}-  resolve  itsvU  into 
a  question  of  policy  and  sound  discretion  with  rcforenoo  to  tlie 
particular  condition  and  circumstances  of  each  nation  to  which 
it  is  sought  to  be  applied.  The  same  fundamental  priiiciplca  of 
goycrnm<>nt  may  require  very  different,  if  not  entirely  opposite^ 
practices  in  different  States.  There  is  great  wisdom  in  the  obser- 
Tationa  of  one  of  our  eminent  statesmen  on  this  subject.  "  It  is 
f^>parent,"  said  he,  *'  that  a  delegation  for  a  very  short  period,  a* 

'ibr  a  single  day,  would  defeat  thM  design  of  representation.  The 
election  in  tliat  case  would  not  seem  to  the  people  to  be  of  any 

.importanoc,  and  the  person  elected  would  think  as  tightly  of  his 
appointment  The  other  extreme  is  equally  to  be  avoided.  An 
election  for  a  long  term  of  years,  or  for  life,  would  remove  the 
member  too  far  from  the  control  of  the  people,  would  be  dangerous 
la  liberty,  and  in  fact  repugnant  to  the  purpoecs  of  the  delegation. 
The  troth,  aa  usual,  la  placed  somewhere  between  the  extremes, 
and  I  believe  is  included  in  this  proposition  :  the  term  of  election 
must  be  so  long  (hat  the  representative  may  understand  the  inter- 
ests  of  the  people,  and  yet  so  limited  that  his  fidelity  may  be 

laeeured  by  a  dependence  upon  their  aj^rolmtion."* 

§  fidS.  The  question,  then,  which  was  presented  to  the  consid* 
eration  of  the  convention  was,  what  duration  of  ofBce  on  the  part 
of  the  members  of  the  House  of  Representatives  was,  with  refers 
encoto  the  stnicturc  of  the  other  hranchcs  of  the  legislative  depart* 
ment  of  the  general  government,  best  adapted  to  preserve  the  put^ 
lie  liberty  and  to  promote  the  general  welfare.  I  say  with  reference 
to  the  structure  of  the  other  branch^  of  the  legislative  depart- 
ment of  the  general  government,  becaum;  it  is  obvious  tliat  the 
duration  of  oflice  of  the  President  and  Senate,  and  the  nature  and 
exteot  of  the  powers  to  be  confided  to  Congrcita,  muat  most  ma- 
terially affect  the  decision  upon  thU  point.  Absolute  uuuuimity 
upon  such  a  subject  could  hardly  bo  expected  ;  and  accordmgly  it 

>  1  ElUot'i  DrIabB,  iO,  41.  t%.  , 

*  Hr.  Ano  >  Spoech,  1  EUM'i  DcM«,  SO,  SI ;  AJoa*!  Wotb,  « :  t  Elliot'* 
D«UtM,M,M. 


446 


coNRTiTurrox  ttf  TUB  dnited  states.         [book  tu. 


will  1)6  found  tliat  no  inconaidprable  diversity  of  opinion  waa 
exhiliitn)  in  the  discuiiaion  in  the  convention.  It  w-as  in  tbe  liret 
in»tancR  dpcided  in  a  committee  of  the  whole  thut  the  period 
flhoiild  bo  three  years,  seven  States  voting  in  the  affirmative  nod 
four  ill  the  nefrative.'  lliat  period  vrux  ttft«rwards  struck  out  by 
R  vote  of  the  convention,  seven  Slutes  voliii)!  tti  tlie  aflinufttivc, 
three  in  tJie  negative,  and  one  boiai;  divided,  and  the  word  "two" 
was  unanimoutly  inserted  in  its  Hteod.'  In  the  subsequent  rcvisioa 
tbe  clause  took  tbe  shape  in  which  it  now  stands  in  tho  Consti- 
tution. 

§  599.  Tho  ffflsons  which  tinull}-  prevailed  in  the  oonvcntioa 
and  cistfwhero  in  favor  of  biennial  elections  iu  prcici\-uce  to  nay 
other  poriod  may  be  arranged  under  the  following  heads:  — 

§  600.  In  the  lirst  place,  an  nrgumcnt  might  properly  be  drawn 
from  t)ie  extent  of  the  country  to  be  governed.  The  teriitorial 
extent  of  the  United  States  would  re^juire  the  representatives  to 
travel  from  great  distances,  and  tlie  an-angemcnis  rendered  neoc«> 
sary  by  that  circumstanoA  would  furnish  mucli  more  serious  ob> 
jections  with  men  tit  for  this  service,  if  limited  to  a  nin^lo  year, 
than  if  extended  to  two  years.*  Annua)  elections  might  be  very 
well  ada]ttod  to  the  State  legislatures,  from  the  facility  of  coa- 
vcning  the  members,  and  from  the  familiarity  of  tbe  people  with 
nil  the  general  oltjeota  of  local  legislation,  when  they  would  be 
highly  inoonvonient  for  the  legislature  of  the  Cnion.  If,  when 
convened,  tho  term  of  Congress  was  of  short  duratioQ,  there 
would  scarcely  be  time  properly  to  examine  and  mature  measures. 
A  new  election  might  intervene  before  there  bad  been  an  oppor> 
ttmity  to  interchange  opinions  and  acquire  the  information  indis- 
pensable for  wise  and  salutary  action.*  Much  of  tlie  businesa  of 
the  national  legislature  must  necessarily  bo  postponed  beyond  a 
single  session  ;  and  if  new  men  are  to  come  every  year,  a  great 
part  of  the  information  already  accumulated  will  bo  laai,  or  be 
unavoidably  o]>en  for  rc-examination  before  any  vote  can  be 
properly  had. 

§601.   In  the  next  place,  however  well  founded  the  maxim 

t  Janmal  ot  tU  ConTrntion.  fp.  «r,  US,  110,  136  ;  4  ElUot'i  Ddnte  (TitWl 
UdlutM).  70,  71. 

■  Journal  of  th«  Conrcittiaii.  jif.  Ill,  107,  tlS ;  I  CUot'*  DcbaM*,  SO  ;  i  Elliot't 
DclMte*  (YntB'i  Uinub^i),  \f^.  92. 

■  Tha  FolcfaUit,  Ka.  fiS  ;  1  tOkie*  Jkbtkm.  tO.  ID.  41,  42. 
•  Th«  FfJfnUu,  Ko.  G3  ;  1  Elliot'*  DoUlw,  40, 11,  IS. 


CH.  IX.] 


RODBB  OP  BSPRBSKNTATTTE8. 


447 


might  )>c,  that  wlii^rc  no  ntiwr  cirotini«taucc8  affect  thv  cose,  the 
greater  the  )>oii-«r  ir,  th«  shorter  oiiglit  to  be  it«  duration ;  and 
conversely,  Uie  Hmnllcr  the  power,  the  more  safely  tt«  duration 
may  he  protracted;'  that  maxim,  if  it  applii>8  at  all  to  tlw 
governnient  of  thff  Union,  wa«  favoraWc  to  the  extension  of  tlic 
period  of  ftervioe  beyond  that  of  the  State  iegislattmi*.  The 
powers  of  Con^HA  are  few  and  limited,  and  of  a  natinnnl  clmr- 
acter ;  those  of  the  &t»te  Iegi8latiiri>»  are  general,  aiid  ha^'e  few 
poeitlve  limitations.  If  annual  elections  are  safe  for  a  State,  hi- 
eunial  <!lt><;tionH  would  not  )>e  leu  safe  for  tlio  United  Statnt.  No 
just  objootion,  then,  could  arine  frwn  thia  aource,  upon  any  notion 
tiiat  there  ironld  Im  a  more  perfect  security  for  public  liberty  in 
annnid  than  in  biennial  etoirtiona. 

§  602.  But  B  far  more  in)])nrtant  consideration  grows  out  of 
the  natnre  an<l  objecta  of  the  powers  of  Congress.  The  aim  of 
erery  political  couHtitiitian  is,  or  ouglit  to  be,  first,  to  uhlain  for 
rulers  men  who  po««)c»s  most  wisdom  to  discern,  and  most  virtue 
to  pursue,  the  common  good  of  society ;  and,  in  the  next  place, 
to  take  the  must  effcetuul  precautions  for  keeping  them  virtuous 
whilst  they  continue  to  hold  their  public  trust.  Frwjuent  elec- 
tions have,  without  question,  a  tendency  to  accomplish  the  latter 
object,^  But  too  great  a  frequency  will  almost  invnrialilr  defeat 
the  former  object,  and  in  most  cases  put  at  hazard  the  Istter.  As 
has  been  already  intimated,  it  has  a  tendency  to  intrmluce  faction 
and  rash  councils,  and  passionate  appeals  to  the  prejudices  ral)>cr 
tiittn  to  the  sober  judgment  of  the  people.  And  wc  need  not  to  be 
'reminded  that  faction  and  enthusiasm  are  the  instruments  by 
which  popular  governments  are  destroyed."  It  operates  also  as  a 
ifrcat  discoura^'ment  upon  suitable  candidates  olTenngtlicmselveB 

or  the  public  service.     They  can  hara  little  op{Kirtouity  to  estab* 

lish  a  solid  reputation  as  stute«mcn  or  patriots,  when  their  scheme* 

are  liable  to  Im  suddenly  broken  En  ni>on  by  demagogues,  who 

[may  create  injurious  suspicions,  and  even  diRpiace  them  from 

Bffice  before  their  mcasiirt^  are  fairly  tried.*    And  they  are  apt  to 

9w  weary  of  iv^nlinued  app«aJa  to  vjndieate  their  ehnnwter  and 

'oondnct  at  the  [lulls,  atnoe  Buocess,  however  triumphant,  i^  of  such 

short  duration,  and  confidence  is  so  easily  hxisened.    These  con- 

>  Tbr  FfdenlUt,  Va.  S> ;  llDntnqsini'a  BjttH  of  la*t,  R  1,  cAi.  S. 

■  The  FedeniUt,  Kol  b7  ;  1  Ktet'i  Conat.  21S. 

■  Ahum'*  SpMch,  1  FJllot'i  TMM**,  33.  •  ]  K«ni'a  Cmau.  tlS. 


448 


CDNSTmrnox  op  the  ctrrso  states.        [bixis  m. 


siderations,  which  arc  olwaj-a  of  some  weight,  are  espedally  sp- 
plkable  to  senices  in  k  natioaal  legislature,  at  a  distaoee  from 
the  constituents,  and  in  cases  where  a  great  variety  of  infornu^ 
tion,  not  eoMljr  accessible,  is  in<top«isab)e  to  a  right  undenrtanding 
of  the  coodnct  and  ^otes  of  representatives. 

§  60S.  But  the  rery  natore  and  objects  of  the  natioaal 
ment  require  far  more  cxperienoe  and  knowledge  than  what  msj 
be  thought  requisite  in  the  Bkembers  of  a  State  legislature.  For 
the  latter  a  knowledge  of  local  interests  and  opinions  ma;  ord>> 
narily  su&ioe.  But  it  is  far  different  with  a  member  of 
He  is  to  legislate  for  the  interest  and  welfare,  not  of  one 
only,  but  of  all  the  States.  It  is  nut  enough  that  he  comes  to  tte 
task  with  an  upright  intention  and  sound  judgment,  but  be 
hare  a  comiKtcnt  degree  of  knowledge  of  all  the  subjects  oft' 
which  he  is  called  to  legislate,  and  be  mtat  have  skill  aa  to  tke 
best  mode  of  appljrhtg  it.  The  latter  can  scarcely  be 
but  by  long  expenenoe  and  training  in  tbe  national  conneila. 
period  of  service  ougbt,  therefore,  to  bear  some  proportim  to  the 
variety  of  knowledge  and  pnettcal  skill  which  tbe  doties  of  the,; 
•tatioQ  demand.' 

$  604.    Tbe  most  superfidal  glaaee  at  the  rdative  dntiea  of  a 
nMoibor  of  a  State  ki^slatare  tad  ui  tbcaw  of  a  member  of  Co*-^ 
grees  will  put  this  matter  in  a  striking  li^rt.     In  a  sii^e  Stats 
tbe  habits,  mannen,  institutions,  and  laws  are  tmifonn,  and  all 
the  citiiens  an  more  or  leas  caoversaot  with  ibco.     Tbe  nUi-: 
tive  bearings  of  tbe  various  parsoits  and  oecnpalions  of  tbe  pMH 
pie  are  well  nndentood  or  easily  ascertained.    Tbe  geaci^l  aSuts 
of  tbe  Slate  lie  in  a  comparatively  narrow  compass,  and  ate  daOy  | 
disenased  aitd  examiaed  by  tboae  who  have  an  immediate  ii 
in  them,  and  by  freqa^t  commonicaiiaa  with  each  other  caa  in- 
terehaage  opiaknis.*     It  is  very  different  with  tbe  general  gov^i 
eniment     There  every  measure  ts  to  be  diseuased  with  lefereaea  | 
to  dM  rights,  interests,  and  puimila  of  all  tbe  gtatrn.     Wbea  I 
yte  Coaatitatioa  was  adopted  there  nre  thirteen,  and  diere  an 
now  twenty-four  States,  baring  diffetvct  laws,  iastitntksM, 
ploymenta,  prodorta,  and  cUmaie*,  an>i  many  artificial  aa  well 
as  natural  differencea  in  tbe  stracton  of  society  growiag  oat  of 


ttatata,  <t ;  1  EcBt*  CMiB.  na. 


M,  ST.  s^  «a^  4t  i  U.  »:  s  DM^ 


CB.  IX.] 


DODBE  OF 


MTtTES. 


419 


these  circumstaDCCB.  Some  of  them  are  AlmoBt  wholly  agri> 
cultural,  flouic  cununervial,  some  manufacturiog,  8ome  have  a 
mUturv  u{  all,  imd  in  no  two  of  thorn  ara  thore  precisitly  the  same 
rvlativv  luljuBtmvnti)  of  all  these  Intereata.  No  legislation  for 
tiie  Uttion  can  be  safe  or  wise  which  is  not  founded  upon  an  ac- 
curate knowltMl^  uf  tliBBO  dii'emtieti  and  thoir  practical  inHuenoe 
upon  public  measures.  What  may  bo  twneficial  and  politic  with 
rofcrcniM?  to  the  interests  of  a  single  State  Jnay  be  aubveraivo  of 
those  of  otlicr  States,  A  regulation  of  conunerco  wise  and  just 
fur  th«  commcreiul  States  may  strike  at  the  foundation  of  the 
pruspi^ity  of  the  ajn'icultural  or  mauufuctunng  States.  And, 
ou  the  other  hand,  a  measure  beneficial  to  agriculture  or  muuu- 
faoturca  may  disturb  and  even  overwhelm  the  shippini;  interest. 
Large  and  enlightened  viewa,  oomprchensive  tuformatioii,  and  a 
jugt  atteutiun  to  the  local  peeiiliariticfl  and  products  and  employ- 
ments of  different  States  are  absolutely  indispensable  qualilica* 
tiona  for  a  member  of  Congress.  Yet  it  is  obvious  that  if  very 
short  periods  uf  service  are  to  be  allowed  to  members  of  Con- 
gress, the  coDtinunl  fluctuations  in  the  public  councils,  and  Uis 
perpetual  changes  of  members,  will  bo  very  unfavorable  to  the 
ac4)uirumcut  uf  the  proper  knowledge,  and  the  duo  application  of 
it  for  thv:  ptililic  welfare.  One  set  of  men  will  just  have  mas- 
tered the  necessary  information,  when  they  will  be  succeeded  by 
ft  second  set,  who  are  to  go  over  the  same  grounds,  and  tJien  are 
to  be  succeeded  by  a  third.  So  that  inexperience,  instead  of 
practical  wiiidom,  hasty  legislation,  instead  of  solicr  deliberation, 
and  imperfect  projects,  instead  of  well  constructed  systems,  would 
characterize  the  national  government.' 

§  6U5.  Congress  has  power  to  rrgulate  oommerce  with  foreign 
nations  and  among  the  several  .States.  How  can  foreign  trade  bo 
properly  regulated  by  nniform  lawa  without  (I  do  not  say  some 
acquaintance,  hut)  a  large  acquaintance  with  the  commerce, 
porta,  usages,  and  regulations  of  furcigu  states,  and  with  the 
pursuits  and  products  of  the  United  States?  How  eta  trade  bo- 
twii-n  Ihe  different  States  1)0  duly  rugidatoti,  without  un  accurato 
cuuwiudge  of  their  relative  situation  and  elimnto  and  prmluc- 
lons,  and  facilities  of  intercourse  ?*  Congress  has  power  to  lay 
1XC9  and  imposts;  but  how  can  taxes  be  jitdiciounly  imposed 
eud  effectiTely  collected,  unless  thojr  ttt  Kcoumraoddtcd  to  ttko 

■  The  FodaralM,  Xo*.  68,  H.  ■  lUd. 

VOL.  1.-20 


450 


CONSTITDIION  OP  THK  UNITKD  STATES.  [BOOK  in. 


local  circiunstaucea  of  the  BOv«ral  States  ?    The  i>owor  of  taxa- 
tion, evoD  witli  tb«  purest  aud  bc«t  iotentioiui,  mii^t,  witboat  a 
thorou;^  kiiowk-(l)rt'  of  the  diversified  intitrusis  uf  Iho  States,  bo- 
oome  a  most  upprt-ssiw  mid  ruinous  eufnn«  uf  powur.i     It  is  true 
that  diSiculticfs  of  this  sort  will  occur  more  frequently  in  the  first 
opcrationa  of  tb«  K*>vcnuuc&t  thui  afteru'mrdB.'    But  in  a  frruwing 
community,  like  that  of  the  Uiiit«d  States,  wLo«e  pupulutlun 
has  alrt-udy  iucrcaaod  from  three  to  tliirteen  millions  within  furtjr 
years,  thorc  must  be  a  perpetual  change  of  meaaur(>s  to  suit  the 
new  cxiffcucics  of  agriculture,  commerce,  and  manufactures,  and 
to  insure  the  vital  ol>jecl8  of  the  Oonstitutinn.     And  so  far  is  it 
from  being  true  that  the  nntional  government  haa  by  ita  famil- 
iarity become  more  8im|)le  and  facile  in  ita  machinery  and 
opcmtioiis,  that  it  may  be  aOirmed  that  a  far  more  exatrt  and 
comprehensive  knowledge  is  now  neoecsarr  to  preserre  ita  ad< 
JH8tment».  and  to  carry  on  its  daily  operations,  than  waa  rer|uired 
or  even  dnmnied  nt  at  its  first  institution.     Its  very  success  aa  a 
plan  of  government  has  contributed,  in  no  small  degree,  to  give 
complevity  to  its  trgiRlation.     And  the  important  changes  in  the 
world  rfuring  its  existence  have  required  vorj-  many  developmeota 
of  its  jmwers  and  duties  which  could  hardly  have  occurred  u 
practical  tmths  to  its  enlight<^ned  founders. 

§  606.  There  are  other  powers  belon^n^  to  the  national  150T- 
emment  which  require  qualilicatioDs  of  a  high  character.  They 
regard  our  foreign  intprcourso  and  diplomatic  policy.  Although 
tlie  House  of  Representatives  does  not  directly  participati!  in  for- 
eign ni^otiations  and  arrangements,  yet,  from  the  necewarA'  con- 
nection between  the  sereral  branches  c^  public  aETuirs,  its  co- 
operation with  the  other  departments  of  the  government  will  be 
often  indispensable  to  carry  them  into  full  effect  Treaties  with 
foreii^  nations  will  often  require  the  sanction  of  laws,  not  merely 
by  way  of  appropriations  of  money  .to  comply  with  their  stipula- 
tions, but  also  to  prorido  suitable  regulations  to  give  tbem  a 
practical  ojieration.  Thus,  a  porcbaae  of  territory,  like  that  of 
Lonisiana,  would  not  only  require  the  House  of  Itcpresentativea 
to  rote  an  appropriation  of  money,  and  a  treaty,  containing 
clousefl  of  indemnity,  like  Die  British  treaty  of  1794,  in  Hko 
manner  require  an  appropriation  to  give  it  effect;  but  commer- 
cial treaties,  in  an  especial  manner,  would  rciuirc  many  raria- 


CR.  IX.] 


HOURS  OP  REPRESBNTATfTISB. 


451 


tiotiA  and  addilioiui  to  the  exiating  laws  in  order  to  ndjust  thom 
to  th«  i^'iienil  syHtcm,  and  pi'oduc«,  wtiero  it  is  int«ndcd,  a  jiuit 
rwiprocitjr.)  It  in  hardly  Doc««8srf  to  say  that  a  oompet«iit 
kiiour-ludfTD  of  thu  law  of  nations  in  indiApt^unablc  to  every  slates- 
inun;  uod  that  ignomnce  may  nut  only  involve;  tlie  nation  in  «ni- 
barrnsxin)!  euatrov(;r8it.-ii  witli  other  nations,  but  may  alxo  inrolre 
it  in  liiimiliutinK  eucririccs.  Cuut^rrHii  alone  id  intniHtcd  with 
the  jNiwur  to  decluni  war.  What  wmild  bo  said  of  rcprcsenta- 
tlTCB  called  upon  to  cxcrciuo  this  ultimate  appoal  of  sovereignty, 
who  wore  ignorant  of  Uio  just  rights  and  duties  of  belligerent  and 
neutral  nations?' 

§  607.  B«8idc«,  tho  whole  diplomacy  of  the  executive  depart- 
ment, and  all  thom*  relations  with  independent  powers  wbidi 
connect  theniseUx-s  wilh  foreign  intisrooursc,  arc  so  intimately 
blended  with  the  proper  discharge  of  legislative  duties,  that  it  is 
impossible  that  they  slioiild  not  be  constantly  brouglit  under  re- 
view in  the  public  debat«ii.  They  must  frequently  furnish  matter 
for  censure  or  praifle,  for  accusation  or  vindication,  for  legisla- 
tive checks  or  legislative  aids,  for  powerful  ap))eals  to  popular 
lavor  or  popular  resentment,  for  the  ardent  contests  of  party,  and 
'  even  for  the  grovcr  exercise  of  the  power  of  impeachment 

§608.  And  this  leads  us  naturally  to  another  remark;  and 
that  is,  thot  a  due  exercise  of  some  of  the  powers  confided  to  tho 
House  of  Representatives,  even  in  its  moat  narrow  functions, 
requires  that  the  members  should  at  least  be  elected  for  a  period 
of  two  years.  The  power  of  imjwaehment  could  scarcely  be  ex- 
erted with  effect  by  any  body  which  had  not  a  legislstivo  life  of 
such  a  period.  It  would  scarcely  be  possible,  in  ordinary  casca, 
to  begin  and  end  an  impeachment  at  a  single  annnal  session. 
And  the  effect  of  change  of  members  during  its  prosecution 
would  be  attended  with  no  inconsiderable  embarrassment  and 
Inconvenicmie.      If  thv  power  is  ever  to  be  exert«d  ao  as  to  bring 

eat  offenders  to  justice,  there  must  be  a  prolonged  legislative 
erm  of  ofTico,  so  as  to  meet  the  exigency.     One  year  will  not 
linflice  to  detect  guilt  and  to  pursue  it  lo  conviction.* 

§  609.  Again,  the  House  of  R4>prenentative8  is  to  be  the  sole 
judge  of  the  elections  of  its  own  members.  Now,  if  but  one  te- 
pslative  session  is  to  be  held  in  a  year,  and  more  than  one  cannot 


1  The  FxdniUat.  Ko.  S3. 

■  ]  EUiot'i  DctatM,  31.  lb.  AoM»'a  Sf^Mb. 


■  IbU. 


452 


coNriTmmoK  OP  the  unitbd  statbs.        [>ooe  m. 


onilinarilf  be  presiuned  conrenteDt  or  proper,  iipurioiu  elections 
cannot  be  inredtigated  and  annulled  in  time  to  have  a  due  effect. 
I'he  Bitting  ntember  muHt  either  hold  bin  seat  dnring  the  whole 
period  of  the  inveatigation,  or  be  muflt  be  suspended  dui-ing  the 
name  period.  In  either  case  the  public  miscbief  will  i>e  Tory 
great.  The  unUomi  practice  has  twen  to  allow  the  member  who 
is  returned  to  hold  his  seut  and  vote  until  he  is  displaced  b^  the 
order  of  the  IIouBe,  after  full  investigation.  If,  tlien,  a  retnm 
can  be  obtained,  no  matter  bj  what  means,  the  irregular  member 
is  »ure  of  huldini^  his  scat  until  a  lon^  period  baa  elapsed  (for 
that  is  indJsfH:iiH»blc  to  any  thoruufib  iuvestigution  of  facts  aris- 
.  ing  at  great  distanocs),  and  thus  a  rery  pernicious  CDCOurage- 
mcnt  is  given  to  the  U8C  of  unlawful  mcaus  for  obtaining  irregular 
returns  and  fraudulent  elections.' 

§  610.  There  is  one  other  oonsidcration,  not  without  its  weight 
in  all  (guestions  of  this  nature.  Where  elections  ore  rery  fre- 
quent, a  few  of  the  members,  as  happens  in  all  such  assemblies, 
will  possess  superior  talents;  will,  by  froqttent  re-elections,  be- 
come moiubere  of  long  stiindtng ;  will  become  thoroughly  masters 
of  tlie  public  business ;  and  thus  will  acquire  a  prejjonderating  and 
undue  iritluence,  of  which  they  will  naturally  be  disposed  to  avail 
themselves.  The  great  bulk  of  the  House  will  bo  composed  of 
new  members,  who  will  neccHSarily  be  inexperienced,  diffident, 
and  undisciplined,  and  thus  be  subjected  to  the  superior  ability 
and  information  of  the  veteran  legislators.  If  biennial  elections 
would  hnve  no  more  cogent  effect  than  to  diminish  the  amount 
of  this  inequality,  to  guard  unsuspecting  confidence  against  the 
snares  which  may  bo  set  for  it,  and  t«  stimulate  a  watchful  and 
ambitious  responsibiUty,  it  would  have  a  decisive  advantage  over 
mere  annual  elections.' 

§  61L  Such  were  some  of  the  reasons  which  produced,  on  the 
part  of  the  framors  of  the  Constitution,  and  ultimately  of  the 
people  themselves,  an  appruluition  of  biennial  elections.  Expe- 
rience has  demonstrated  the  sound  policy  and  wisdom  of  the  pro- 
vision. But  looking  back  to  the  period  when  the  Constitution 
was  upon  its  passage,  one  cannot  but  be  struck  with  the  alarms 
with  which  the  public  mind  was  on  this  subject  attempted  to  be 

>  The  F«a«nliM.  N«.  fiS. 

*  The  Federals,  So.  SS.  8c«  alM  1  TttckM**  Bbck.  Oomu.  App.  t» ;  t  Wibon'a 
U«  Ltctanm,  ISL 


CH.  Ut.  j 


HOUSE  OF  BEPRESKNTATIVRS. 


4fi8 


disturbed.  It  waa  repeatedly  urged  in  and  out  of  the  Stat©  con- 
TfnlioDEi  Uiat  biennial  elections  were  dangerous  to  the  public  lib- 
erty ;  and  that  Congrrsii  might  perpetuate  itself,  and  reign  with 
abHolute  power  over  the  nation.' 

§  612.    Id  the  nt-xt  place,  as  to  the  qnalificationa  of  the  elected. 

rThe  Coastitntion  un  this  subject  ia  aa  follows;'  "Ko  person 

shall  bo  a  rcprcBCntativo  who  shall  not  have  attained  to  the  agfl 

of  twenty>livo  years,  and  lM%n  seven  years  a  citizen  of  the  United 

States;  and  who  shall  not,  when  elected,  be  on  inhabitant  of  tlist 

.State  in  which  he  shall  be  chosen." 

§  61.H.    It  18  obvioiia  that  the  inquiry  as  to  the  due  qualifica- 
tions of  representatives,  like  that  aa  to  the  due  qualifications  of 
electors  in  a  government,  is  susceptible,  in  its  own  nature,  of 
'very  different  answers,  according  to  the  habits,  institutions,  in- 
terrsta,  and  local  peculiarities  of  different  nations.     It  is  a  point 
upon  which  a'e  can  arrive  at  no  univerital  rule  which  will  accom- 
modate itself  to  the  welfare  and  wajita  of  every  people,  with  the 
same  proportionate  advantagea.     The  great  objects  are,  or  ought 
to  be,  t<»  secure,  on  the  part  of  the  representativas,  fidelity,  Hound 
judgment,  competent  information,  and  incorruptible  indejK'nd- 
QDoe.     The  beat  mixlea  by  which  these  objects  can  be  attained 
are  matters  of  discussion  and  reasoning,  and  essentially  depend- 
ent UjMin  a  large  and  enlightened  survey  of  the  human  character 
and  paaeions,  aa  developed  in  the  different  stages  of  eirilixed 
society.     There  ia  great  room,  therefore,  for  divcrsitifS  of  judg- 
ment and  opinion  upon  a  subject  so  comprehensive  and  \-ariablo 
in   its  elements.     It  would  be  matter  of  surprise,  if  doctrines 
I  essentially  different,  nay,  even  opposite  to  each  other,  should 
[fiot,  under  such  circumstances,  be  muintuined  by  political  writers 
■equally  eminent  and  able.     Upon  questions  of  civil  policy  and 
the  fundamental  structure  of  gorommenta  there  has  hitherto  been 
too  little  harmony  of  opinion  among  the  greatest  men,  to  encour- 
age any  Ii0|)0  that  the  future  will  be  leas  fniilful  in  dissonances 
Ltiian  the  past     In  the  practioo  of  goreraments  a  \erf  great  dl- 
•Tcrsity  of  qualiHcations  has  \>t^n  insisted  on  as  prerequisites  of 
office;  and  this  alone  wotild  demonstrate  that  there  was  not  ad- 
mitted to  exist  any  common  standard  of  aupcrior  excellence 
,  adapted  to  all  ages  and  all  nation*. 

§  614.    In  Great  Britain,  besides  tiumo  negative  qualtficatioM 
■  I  ElUot't  DftMtOk  39,37,  3«,  43;  Id.  «T.  *  Art.  1,  |  ^  pMagnph  3. 


454 


COKSTITOTION  OT  THE   UXIILD  BTATIS,  [BOOK  HI. 


irbich  are  founded  in  ueagc  or  positive  Uw,  bu«Ii  m  the  exclusion 
of  iicrsons  boldiiig  oortaia  oSiceft  and  pensions,  it  is  required 
that  eveiT  mentber  for  a  count}-,  or  kui.^'lit  of  a  nbire  (as  be  ia 
technically  called),  shall  bax-o  a  clear  estate  of  freehold  or  copy- 
hold to  the  value  of  X600  sterling  iMir  annum;  and  cvt-ry  member 
for  a  city  or  borough,  to  the  value  of  X300,  except  tlie  cldttit  sons 
of  peers,  and  of  pcreonx  qualifii-d  to  Iw  knights  of  shires,  and 
except  the  mfmbent  of  the  two  universities.' 

§  615.  Among  the  American  colonies  antecedent  to  the  Revo- 
lotion,  a  great  dtvei-eity  of  qtiaUficatious  existed;  and  the  Stat« 
oonstitutiou8,  8ubso(|iiently  foi-mod,  by  no  moons  lessen  tliat  di- 
versity. Somo  insist  upon  a  freehold  or  other  property  of  a  oer- 
tdiu  raluc;  others  require  a  certain  period  of  residcnee,  and 
oitixcusbip  only;  othei-s  re<iuire  a  freehold  only;  others  a  pay- 
ment of  taxes,  or  an  equivalent;  others,  again,  mix  up  all  the 
Tarious  qualifications  of  property,  residence,  ciliutnsbii^,  and 
taxation,  or  substitute  some  of  tJiese,  as  eipiivalenia  for  others.* 

I  616.  llie  existing  qualifications  in  the  States  Iwing  then  so 
various,  it  may  l»e  thuuitht  that  tbe  best  eoorse  would  have  been 
to  adopt  the  rules  of  the  States  resi«?ctively,  in  regard  to  tlie 
most  numerous  hrnnch  of  their  own  legislatures.  And  this 
0001*86  might  not  have  l>cen  open  to  serious  objoctioits.  Dut,  as 
the  qualifications  of  memlwra  were  thought  to  be  less  carefully 
defined  in  the  State  constitutions,  and  more  susceptible  of  uni- 
formity  than  those  of  the  electors,  the  subject  was  thntight  pro]>er 
for  regulation  by  the  convention.'  And  it  is  observable,  that  the 
positix'e  qualifications  are  few  and  simpla  They  respect  only 
age.  ciliicnship,  and  inhabitancy.* 

§  617.  First,  in  n'gard  to  age.  The  representative  must  have 
attained  twenty-Svo  years.  And  certainly  to  this  no  reasonable 
objection  can  be  made.'  If  experience  or  wisdom  or  knowledge 
be  of  \'alue  in  the  national  councils,  it  can  scarcely  be  pretended 
that  an  earlier  ago  oould  afiford  a  certain  guaranty  for  either. 
That  some  qualification  of  age  Is  proper,  no  one  will  dispute; 
Ko  one  will  contend  tliat  persons  who  are  minors  ought  to  be 
eligible ;  or  that  those  who  have  not  attained  manhood,  so  as  to 


>  I  Black.  Ceoiin.  17«.    8m  (  InittL  46  to  «L 

*  Dr.  Utbar'i  KacycL  A»rtkui,  an   CtaMaKnu  </  On  OkUei  AitM. 

*  Th*  FahnHrf.  No.  »G.  *  I  Tndier'i  Blkdt.  OoMOk.  AFt>-  W- 

*  1  Tucktt's  Blxk.  Cuiiim.  App.  SIS,  SU ;  3  U'Oioa'i  L*«  Uct.  139,  IM. 


CH.  IX.] 


BOUKS  OP  BCPBCJENTATIVBL 


be  entitled  b;  tlie  common  law  to  dispoBe  of  tbeir  pcrsoDft  or  ca- 
ttatea,  at  their  ova  will,  would  be  lit  depoaitariea  of  the  otitlioritj' 
to  diHjMMu;  of  tile  rifihta,  persons,  and  propertjr  of  others.  Would 
the  aicrv  attainment  of  twcntj'-onc  years  of  ago  be  a  more  proper 
qualiliratioa?  All  just  reasoniQ;;  would  Im;  against  it  The 
clmractera  and  pnncipW  of  youuK  men  can  scarock  bo  under* 
stood  itt  the  momt-nt  uf  their  majorit}'.  Ihay  are  then  new  to 
the  rig^lila  of  iiclf-guronimvnt,  warm  in  thoir  iiassiona,  ardent  in 
thi'tr  oxpcctiittunis  and  just  vscAping  from  pupilii^  are  strongly 
tcmpti-d  to  diHvard  the  Ioimoiu  of  caution  whieh  ript-r  years  in- 
CulcuU.-.  What  they  will  beeouio  rcmuius  to  he  wx-u.  luid  four 
yoani  beyond  that  period  Es  but  n  very  short  space  to  which  to 
try  tJicir  vlrlmv,  develop  tlivir  talents,  cularfcc  their  rcsouron, 
and  friro  them  a  pnctical  iiisigbt  into  tlic  buitiuetis  of  lifo  tdo- 
quato  to  tlicir  own  immediate  wants  and  duties.  Can  tlic  inter* 
Mts  of  otiiers  be  safely  confided  to  those  who  have  yet  to  Icurn 
'liow  to  tnkc  cai-o  of  t]kcir  own?  The  British  const) lotion  lias, 
indeed,  prondod  only  for  the  members  of  tlic  House  of  Conunons 
not  being  minors;*  and  illimtrioiia  iMtonoCfl  havfi  occurred  to 
show  tlutt  great  Btatosmen  may  bo  formed  even  during  tlieir  mi* 
Bority.  But  such  Instajices  are  rare;  they  are  to  be  looked  at  as 
prodi^es,  nttlier  than  as  examples;  as  tlio  extraordinary  growth 
of  a  peculiar  education  and  character,  and  a  hutbed  precocity  in 
a  monurehy,  ratlicr  than  as  the  sound  and  thrifty  growth  of  tho 
open  air.  and  the  bracing  hardihood  of  a  republic  In  the  ood- 
vention  this  qiuilification  as  to  age  did  not  pass  without  a  stnig* 
gle.  It  was  originally  carried  by  a  vote  of  scTcn  States  against 
three,  one  being  divided;  though  it  was  ultimately  adopted  with- 
out a  dirisioD.'  In  the  Stato  conventions  it  does  not  acorn  to 
bave  formed  any  important  topic  of  debate.* 

>  1  BWk.  Comm.  IBl,  ITS,  17a  ;  4  lutiL  U,  IT. 

■  Jtomal  ti  CtmnDlion,  Jum  21,  p.  148 ;  Id.  Aug.  8,  p.  23S ;  4  KUM**  MMm 
(TateC*  HiiiiitM).  8«. 

■  Lord  Cak*  hw  wUk  Miuli  pwriljr  iiHn«nrt*iI  tlw  |>«p(r  ^uaUGailiaiu  of  ■  Parii*> 
liMiil  ■■II.  (Inwlnx  tba  iwwnMMtw  bom  tlu  ptofwitiM  of  U»  drphant.  Fint,  thai 
h*  thanU  \m  wltbnnt  |pll ;  Uiat  la,  wlthoat  nuJiot,  nnoM,  liMl,  tuA  aawj.  B*(««dl]r. 
that  ha  ibnalil  ba  eocuunl,  inll>xibl«,  mil  nol  to  Iw  b»«r«d  or  Uinied  Inm  tli*  titfiU 
dtbir  tot  Inr,  ixwml,  or  (sTor.  uor  in  Jii4gMf«t  mprat  (Knon*.  Thinlljr,  th*t  h« 
AonU  be«(  ■  npv  nteawry.  Ilwt,  rtoMiabcviMg  |i«41i  |«al,  be  la^ilit  nrm<nher  AitigfOt 
to  Mm*.  PounJily,  tbst  thongli  be  be  o(  Um  grwtnt  itmigth  uid  vodMrtMiiUn^  jrtt 
b*b«Mti>U«u(l  ip)  la  (mn}iuilat.  And,  UUiIy,  Uut  bo Iw  phlUiiUmifc, ihowlng  tha 
my  t«  avcty  man.    4  IiuUL  S.    WbaMvar  ona  nu;  now  tUiik  «f  lUa  qulM  aaakB^i 


456 


oossTrttmos  of  thb  dkitkd  sTAira.        [book  in. 


§  618.  Secondly,  la  regard  to  citizenship.  It  is  required  theti 
the  reprcAcntutivu  tiliall  huvc  been  a  citizen  of  the  United  States  i 
Bcvfn  yt>ftr».  Upon  the  propriety  of  esoluding  aliens  from  eligi* 
bility,  there  could  scarcely  be  any  room  for  debate;  for  there 
could  be  no  security  for  a  due  administration  of  any  government 
by  persons  whose  interesttR  and  connections  were  foreign,  and 
who  owed  no  permanent  allegiance  to  it,  and  had  no  permanent 
Btake  in  its  measures  or  operations.  Foreign  influence,  of  the 
most  corrupt  and  mischievous  nature,  could  not  fail  to  makit  tta 
vay  into  the  public  councils,  if  tiiore  waa  no  guard  against  the 
introduction  of  alien  reprcscntatiTes.  *  It  has  aoc»rdin);ly  bi-cn 
a  fundamental  policy  of  most,  if  not  of  all,  free  states  to  vxcludc 
all  foreigners  from  holding  offices  in  the  state.  Tlio  only  prac- 
tical question  would  seem  to  be,  whether  fureigiicni,  even  after 
naturalization,  should  be  eligible  as  rL-prcscutatives,  and  if  so, 
what  was  a  suitable  period  of  citizenship  for  the  allowance  of 
the  privilugc.  In  England,  all  aliens  bom,  unle^  imturalised, 
were  originuHy  excluded  from  a  scat  in  Parliament;  and  now, 
by  positive  Icffistatiou,  no  alien,  though  naturalized,  is  capable 
of  being  a  member  of  either  house  of  Parliaiuent*  A.  different 
oouniQ,  naturally  arising  from  the  circumstancefl  of  the  country, 
waa  •do|>tcd  in  (be  American  oulunies  autoctMlcnt  to  the  Rovtilu- 
Uon,  with  a  vivw  to  invite  cmi^utiona  and  Bcttlcments,  and  thus 
to  facilitate  the  cultivation  of  their  wild  and  waste  lands.  A 
similar  policy  Inul  since  pervaded  the  State  governments,  and 
Iwd  been  attend<.-d  with  so  many  advantagvs,  that  it  would  have 
l)«cn  impracticablo  to  enforce  any  total  exclusion  of  naturalixed 
citiietts  from  oflioc.  In  the  convention  it  was  originally  pro- 
posed that  three  years'  citizenship  should  constitute  a  qualifica- 
tion ;  but  tiiat  was  exchanged  for  seven  years,  by  a  vote  of  ten 
States  to  one.'  No  objection  seems  even  to  have  been  suggested 
against  this  qualirication ;  and  hitherto  it  has  obtained  a  general 
acquiescence  or  approltation.  It  certainly  subserves  two  impor- 
tant purjKKses:  1.  That  the  constituents  have  a  ftill  opportunity 
of  knowing  the  character  and  merits  of  their  representative; 


Uhm  qtuliliM  would  not,  in  OUT  4*7.  U  thoNght  •  bad  «nB(ntion  of  tbe  pnpor  qoali* 
tim  of  ■  gooit  taodem  Mtwbcr  «f  PatUuMat  cr  OMgtf^ 
I  Tbe  Foitnlul.  Ko.  CS. 

*  ]  Muk.  Conm.  83,  175;  t  la*L  IM. 

*  Joyntl  of  th>  CoBVMiUoa,  8  Aaput,  tn,  aU. 


CB.  IZ.] 


BODSE  or  BEPBESEM^TITBS. 


467 


2.  That  thfl  rcpreat-ntative  has  a  like  opport^mity  of  learning  the 
character  and  vraiits  aiid  opinions  of  bis  constituents.' 

§  619.  Thirdly,  in  ivgard  to  inhabitancj.  It  is  required  that 
the  representative  ohall,  when  elected,  be  aD  inhabitant  of  the 
^Uit«  in  which  he  shall  b«  cho«cii.  The  object  of  this  clame, 
doubtless,  was  to  secure  an  attachment  to,  and  a  just  representa* 
tiun  of,  tbe  interests  of  tlie  State  in  the  national  councils.  It 
was  supposed  that  an  inhabitant  would  feel  a  deep«r  concern  and 
po8«e88  a  more  enlightened  riev  of  the  varioiu  interests  of  his 
constituenta,  than  a  mon^  stranger.  And,  at  all  evcntn,  be  would 
generally  poBMSs  more  entirely  their  sympathy  and  confidence. 
It  is  observable  that  the  inhabitancy  required  is  within  the 
State,  and  not  within  any  particular  dintrirt  of  the  Ktatei,  in 
which  the  nieniWr  is  chosen.  In  Kngland,  in  former  times,  it 
was  required  that  all  the  menibers  of  the  House  of  ComnuMts 
should  be  inhabitants  of  the  places  for  which  they  wer«  chosen. 
But  this  was  (or  a  ton^  time  wholly  disregarded  in  praetjce, 
and  was  at  length  repealed  by  statute  of  1-4  Geo.  3,  ch.  68.'  This 
circumstance  is  not  a  little  remarkable  in  parliamentary  histor)-; 
and  it  establishes,  in  a  rery  striking  manner,  how  little  mere 
theory  can  be  regarded  in  matters  of  government.  It  wait  found 
by  experience  that  boroughs  and  cities  were  often  bettor  repre- 
sented by  men  of  eminence  and  known  patriotism,  who  were 
strangers  to  them,  than  by  those  choeon  from  their  own  vicinage. 
And  to  this  very  hour  some  of  the  proudest  names  in  English 
hiatorv,  as  patriots  and  statesmen,  hare  been  the  reprcsenlatjres 
of  obscure,  and,  if  one  may  so  say,  of  ignoble  borouglia. 

§  620.  An  attempt  was  made  in  the  oonrention  to  introduce 
B  quail ficat ion  of  one  year's  residence'  before  tbe  cI<.'Ction ;  but  !t 
failed,  four  Slalcs  voting  in  favor  of  it,  six  against  it,  and  one 
being  divided.*  The  omission  to  provide  that  a  siibsequent  non- 
refiidonec  shall  be  a  vacation  of  tbc  seat,  may  in  some  measure 
defeat  the  policy  of  tlie  original  limitation.  For  it  has  happened, 
in  more  than  one  instance,  that  a  member,  after  Ills  election,  has 
removed  to  another  f^tiite,  and  Urns  censed  to  have  (hat  intimate 
intercourse  witli,  and  dependence  upon,  his  constituents,  upon 
whicli  so  much  value  has  been  placed  in  all  the  discussions  on 
this  subject 

>  S  Wibcm'i  Uw  Ltctnrt*.  141. 

■  1  BUek.  Cmmd.  175 ;  2  WIUm'*  Law  UcL  141 

•  Joanul  of  OMnMin.  9  Aw^  PP-  ^*-  >^ 


4fi« 


CONSTETL-TION  OP  TB2  VHITED  SIATGa.  [BOOK  IB. 


§  621.    It  is  obsflrrabte  that  no  qualification,  in  point  of  estate, 
lias  i>ei^ii  required  on  tlie  part  of  mMnbc-ns  of  the  House  of  fiepre- 
WQtatiTea'    Y«t  auch  a  qu&liKcation  i»  insistod  on  by  a  consid- 
eralile  number  of  tho  Statt^ii  as  a  quHlificatiun  fur  the  popular 
branch  of  tho  State  icgiBlaturc.>{«)    The  probability  is,  that  it 
vas  not  incorporutiid  int«  the  Coiutitution  of  the  Cuiou,  from 
this  difficulty  of  framing  a  provision  that  would  be  gcnemlly 
acceptable.     Two  reasons  have,  however,  been  assigned  by  u 
Ififtrned  vomuiuatAlor  for  the  omission,  whicli  deserve  notice.  ] 
Finit,   thut  in  n  representative  govemmeut  the  people  hare  an 
undoutiti'd  rijfltt  to  judge  for  themselves  of  the  qoalificatioD  of 
their  ropi-c»entative,  and  if,  in  their  opinion,  his  integrity  and 
ability  will  supply  the  wont  of  estate,  there  is  better  reason  for 
contending  that  it  ought  not  to  prevaiL     Secondly,  that  by  re- 
quiring a  property  qualiflcatitHt,   it   may  happen  that  men  the 
best  qualiRed  in  other  reapet-ts  mtu;ht  bo  iucuf>3(;itati'd  from  sorr- 
ing  their  country.*    Tliere  ia,  doubtless,  weight  in  each  of  these 
considerations.     Tho  lirst,  however,  is  equally  applicable  to  all 
sorts  of  qunlificationH  whulaoevcr,  and  proceeds  upon  an  inad- 
missible  foundation;  and  that  is,  that  the  society  has  no  jnst 
right  to  regulate  for  the  common  good  what  a  porticm  of  the  com- 
munity may  doom  for  their  special  good.     The  other  reason  haa 
a  better  foundation  in  theory,  though,  generally  speaking,  it  will 
rarely  occur  in  practice.     But  it  goes  very  far  towards  overturn- 
ing another  fundamental  guard,  which  is  deemed  essential  to 
public  liberty;  and  that  is,  that  the  representative  should  have  a 
common  interoat  in  miiasures  with  his  conatttuenta.     Now,  the 
power  of  taxation,  one  of  the  most  delicate  and  important  in  fan- 
man  society,  will  rarely  be  exerted  oppressively  by  those  who  ore 
to  sliare  the  common  burdens.     The  possession  of  }>roperty  has 
in  this  respect  a  great  value  among  the  proper  qualifications  of 
a  representative,  since  it  will  have  a  tendency  to  check  any  un- 
due impositions,  or  sacrifices,  which  may  oijually  injure  bis  own 
as  well  us  thcira.* 

§  6'22.    In  like  manner  there  Is  a  total  absence  of  any  qualifi- 
cation founded  on  religious  opinioits.     However  dutirablo  it  may 

■  Joonial  of  CiMinntlun.  Sfl  Jiiljr,  fp.  SM.  901;  Id.  It :  Id,  S41.  SIS. 

*  Dr.  Lisbtc'i  Eiicyvl.  AnwicuBi,  art.  Ontlit»ilitmt «/  Ou  Omiud  Stau^ 

*  1  Tnditr'*  Bbrk.  Comm.  Ap[i  SIS,  313  g  1  fflliot'*  Dttata^  GS,  U. 

*  1  Tuck.  BWk.  decant.  App.  HX  319. 

\m)  Tkl*  i*  M)  longsr  trae. 


PH.  IX.] 


BODSB  OF  BCPEeSENTATIVEa. 


459 


bo  that  every  g:overQmetit  should  be  adminifltcred  by  those  who 
have  a  fixed  rolipiotui  belief,  and  feci  a  deep  reHpouflibilil}'  to  an 
infiuiU'ly  wis*  and  ftcmwl  Brin^,  and  liowcvcr  fitronR  may  be  our 
pcrsuaitiuo  of  the  cvorlaotiiiK  value  uf  a  belief  in  ChristiaDitjr 
for  our  prcneut  m  well  as  our  inunortnl  welfare,  the  history  of 
ttu!  world  lia«  bIiowd  the  extrem«  dun)!Cra  ax  well  as  difKcultici 
of  ooiiiicctiiig:  th«  eivil  power  with  rvlij^oiu  opiuiuiis.  Half  the 
ulamitics  with  which  the  human  raoc  have  been  seout^ed  have 
ari»«u  from  the  union  of  Church  aiid  State ;  and  the  jtcoplc  of 
America,  above  all  othera,  have  too  lately  fiartjikctt  of  the  tcr- 
Irors  and  the  safTcrtngs  of  jioraecution  for  conscience'  sake,  not 
to  feel  an  excwMive  repu^ance  to  the  introduction  of  religious 
tests.  Experience  haa  dcmonjilrated  the  folly  as  well  as  llie  in* 
justice  of  exeliutiutu  frum  office,  (uuaded  u|>on  religious  opinions. 
Th«y  faav«  a^^avatcd  all  other  evils  iu  the  political  organization 
of  societies.  Tliey  earr}'  in  their  train  discord,  oppression,  and 
bloodshed.'  They  perpetuate  a  iHivuife  ferocity  and  itisensibilit/ 
to  human  rights  and  sufferings.  Wheni\-cr  they  have  been  abol- 
Uhed,  they  have  introduced  pcjice  and  moderation  and  cnliKht- 
oned  k-|;islal ion.  Wherever  llicy  have  been  pcrpciuutvd,  they 
hare  always  checked,  and  in  many  eases  have  o\'«rturned,  all 
tlie  securities  of  [lublie  lil>erty.  The  rifrfit  to  burn  heretics  sur- 
vived in  England  almost  to  the  clotse  of  the  reign  of  Charles  the 
Second;'  and  it  haa  bc«n  asserted  (but  I  have  not  been  able  to 
ascertain  the  fact  by  c.\amiaatiuu  of  the  printed  jounial»)  that 
OQ  that  occasion  the  whole  bench  of  bishups  voted  a^inst  tlto 
repeat  We  all  know  how  slowly  tlte  Itoman  Catholics  ha^'e  re- 
oorerod  their  just  rights  in  England  and  Ireland.  The  triumph 
has  been  but  just  achieved,  after  a  most  painful  cont«rst  for  a 
half-century.  In  the  Catholic  countries  to  this  very  hour,  Prot- 
estants  are,  for  the  loost  part,  treated  with  a  cnld  and  reluctant 
jealoiiiiy,  tolerated,  perhaps,  but  never  cheriahe<I.  In  tlie  actual 
situation  of  the  Uuited  States,  a  union  of  the  States  would  have 
been  impracticable,  from  the  known  diversity  of  religious  fiecta,  if 
onythin;;  more  than  a  simple  l>elief  in  Christianity,  in  the  most 
general  form  of  e\preRition,  had  )>cen  required.  And  even  to  this 
some  of  the  States  would  have  objected,  as  inconsistent  with  the 
fundamental  policy  of  their  own  charters,  constitutions,  and  laws. 
Whatever,  indeed,  may  have  been  the  desire  of  many  [x-mons  of 

'  8m  I  BImL  Cmbol  41,  ii,  ta,  47.  <  4  Bkck.  Oooua.  4B- 


460 


CONSTlTOnOK   OP  THB  XIXITED  STATES.  [bOOE  OI. 


a  deep  religious  focllug  to  hnvc  embodied  some  provisjon  on  this 
Rubjcct  in  the  Coimtitulion,  it  may  be  safely  Rflirnied  that  hitherto 
the  a\m^nci:  has  uut  been  felt  tus  nii  evil ;  and  that  while  Chris- 
tianity cuiitinueti  to  be  Uie  belief  of  the  enlightened  and  viae  and 
pure  among  Uie  electors,  tt  is  impoanible  that  inJidelity  can  find 
an  easy  home  in  tJie  House  of  K«]>reB«ntativea. 

§  62S.  It  has  been  justly  observed  that  under  tJie  reasonalile 
quail ticationft  established  by  tlie  Constitution,  the  door  uf  tbia 
jwrt  of  the  fedora!  government  is  open  to  merit  of  every  descrip- 
tion, whether  native  or  adoptive,  whether  young  or  old,  and 
witlioiit  regard  to  poverty  or  wealth  or  any  particular  profeesioa 
of  religious  faith.' 

§  624.  A  ((ucstion,  howerer,  han  been  nup^gieated  npon  this  sub- 
ject which  ought  not  to  l>e  passed  over  without  notice.  And  that 
is,  whetltcr  the  States  can  superadd  any  qualiScationa  to  tliOM 
preserilx-d  by  the  Constitution  of  the  United  States.  Tlio  laws 
of  some  of  the  Stater's  have  alivady  required  that  the  reprcsento- 
tire  should  be  a  freeholder,  and  be  resident  within  the  district 
for  which  he  Is  chosen.'  If  a  State  legislature  has  authority  to 
pass  laws  to  this  effect,  they  may  impose  any  other  qualihcationB 
beyond  those  provided  by  the  Constitution,  however  inoonven* 
ient,  rcatrietivc,  or  even  mischievous  they  may  be  to  the  iutcn?!St« 
of  the  Cnion.  The  legislature  of  one  Stut«  may  require  that 
none  but  a  Deist,  a  Catholic,  a  Protestant,  a  Calvinist,  or  a 
Universnlist  shall  be  a  n-pn'sientativc.  The  legislature  of  an* 
other  Slate  may  require  that  none  shall  be  a  representative  but 
a  planter,  a  farmer,  A  mechaniv,  or  a  manufacturer.  It  may  ex- 
clude mcrdiants  and  divines  and  physicians  and  lawyen.  Ad* 
other  legialatnre  may  require  a  high  moneyed  qualification,  a 
freehold  of  great  value,  or  [tersonal  estate  of  great  amount.  An- 
other legislature  may  require  that  the  party  shall  have  been  bom 
and  always  lived  in  the  State,  or  district,  or  that  he  shnM  I»e  an 
Inhabitant  of  a  particular  town  or  city,  free  of  a  corporation,  or 
an  eldest  son.  In  short,  th«ro  is  no  end  to  the  raneties  of  qual- 
ifications which,  witJtout  insisting  upon  extravagant  cases,  may 
bo  imagined.  A  State  may,  witli  the  solo  object  of  dissoh'ing^ 
the  Union,  crcat«  qualilications  bo  high  and  so  singular  that  It 
shall  become  impracticublu  to  elect  any  rcproAentative. 

>  Tl>«  F(d«i>li>t.  Vo.  G2. 

*  1  TnckM'a  Bhck.  Coiiun.  A^  StlL 


ca.  tx.] 


HOOSS  OF  RBPRBSENTATIVES. 


461 


§  62S.  It  would  mem  but  fair  reasoning,  upon  Uie  plainest 
principles  of  intvrprctution,  tliat  when  the  Constitution  entab- 
lisbed  certain  qualificationa  aa  niicctuuiry  for  olTice,  it  meant  to 
exclude  all  otheni  as  prerequisites.  From  the  vcrj  nature  of 
8u«h  a  proviaiuu,  the  nfTinnntion  of  the»e  quuliiicationB  would 
seem  to  imply  a  negative  of  all  others.  And  a  doubt  of  this  sort 
aeeniB  to  hare  pervaded  (he  mind  of  a  Icamcd  commentator.'  A 
power  to  add  new  (jualificationg  is  certainly  f^ui  vak-nt  to  a  power 
to  vary  them.  It  adda  to  the  aggregate  what  changes  the  nature 
of  tlie  former  requisites.  The  House  of  RepreseDtatircs  seems 
to  have  acted  upon  this  interpretation,  and  to  hare  held  tliat  the 
State  legislatures  have  no  power  to  prescribe  new  qualifications, 
unknown  to  the  Constitution  of  the  United  States.*  A  celebrated 
American  ntatesman,'  however,  with  bis  avowed  devotion  to 
State  power,  haa  intimated  a  contrary  doctrine.  "If,"  says  he, 
'^whenever  the  Constitution  assumes  a  single  power  out  of  many 
which  belong  to  the  same  subject,  wo  sliould  consider  it  as  as- 
suming the  whole,  it  would  vest  the  general  government  with  a 
mass  of  powers  never  contemplated.  On  the  contrary,  the  as- 
sumption of  particular  powers  seems  an  exclusion  of  alt  notss- 
tumed.  This  reasoning  appears  to  me  to  be  soimd,  but  on  so 
recent  a  change  of  view,  caution  requires  us  not  to  be  over-confi- 
dent"* Ho  intimates,  however,  that  unlcfls  the  caae  be  either 
clear  or  nrgent,  it  would  be  better  to  let  it  lie  undisturbed.* 

§  626.  It  does  not  seem  to  have  occurred  to  this  celebrated 
stntcsman,  that  the  whole  of  Uiis  reasoning,  which  is  avowedly 
founded  upon  that  amendment  to  the  Constituliou  which  pro* 
vides  that  "the  powers  not  delegated  nor  prohibited  to  the  States 
are  reserved  to  the  States  respectively,  or  to  the  peo|)le,"  proceeds 
upon  a  basis  which  is  inapplicable  to  the  case.  In  the  first  place, 
no  powers  could  be  reserved  to  the  States,  except  those  which 
existed  in  tlw  States  btrforo  the  Constitution  was  adopted.  The 
amt-ndmi-nt  dues  not  profess,  and,  indeed,  did  not  intend,  to 
confer  on  the  States  any  new  powcre,  but  merely  to  reserve  to 
tbem  what  were  not  conceded  to  the  goremment  of  the  Union. 
Now,  it  may  properly  bo  asked,  where  did  the  States  get  the 
power  to  appoint  representative  in  the  national  government? 


1  1  Tncker'a  BlKk.  Conun.  App.  S13. 
*  JtCtnoo'*  Comap.  2S9. 


•  Mr.  J«AtMs. 

*  i  Jtflknoa'a  Com^  tn. 


432 


CDHSTITirnOK   OF  THB   UXITED  BTAnH.  [BOOK  III. 


Wait  it  a  power  that  existed  at  all  before  the  Constitatton 
adopted  ?     If  derived  from  the  Conatitutioo,  must  it  not  be  de- 
rived exactly  under  the  qualificatiuiu  eatablirfied  by  th«  Conati- 
tution,  and  nont.*  others?     If  the  Constitution  h»»  delegated  ao< 
power  to  the  States  to  add  new  quulifR'ntions,  bow  can  tliey  ctaimf 
any  sacb  power  by  the  mere  adoption  of  that  instrument,  which 
they  did  not  before  poexess  ? 

§  627.  The  truth  i«,  that  the  States  can  exerciM  no  powe 
whatsoever  which  exclusively  spring  out  of  the  existence  of  the 
national  ^vemment,  which  the  Coostitutinn  does  not  dele 
to  them.  Tliey  have  jast  M  much  right,  and  no  more,  to 
scribe  new  qualiHcations  for  a  representative,  as  they  have  for  a 
President.  Kach  is  an  officer  of  the  Union,  de^i^inc  hia  powers, 
and  riualifications  fn^im  the  Oon-slitution,  and  neither  created  by, 
dependent  apon,  nor  controllable  by  the  States.  It  is  no  origi- 
nal prerogative  of  State  power  to  appoint  a  reprwientative,  a 
senator,  or  President  for  the  Union.  Those  ofticera  owe  their 
existence  and  functions  to  the  united  voice  of  the  wfaolo,  not  of  a 
portion  of  the  people.  Before  a  State  can  assert  the  right,  it 
must  show  that  the  Constitution  has  delegated  and  rcco^zod  it; 
Ko  State  can  say  that  it  has  reserved  what  it  never  possessed. 

§  628.  Besides,  independent  of  this,  there  is  another  funds- 
mental  objection  to  the  reasoning.  The  whole  scope  of  tfao  argu- 
ment is,  to  show  that  the  legislature  of  the  State  has  a  ri^t  to 
preserilte  new  qualifications.  Xow,  if  the  Stata  iu  its  political 
capacity  had  it,  it  would  not  follow  that  the  legislature  po 
it.  That  must  depend  upon  the  powers  conTidud  to  the  Stata^ 
legislature  by  its  own  constitution.  A  State,  and  the  legislature 
of  a  State,  are  quite  different  political  beings.  Now  it  would  be 
very  desirable  to  know  id  which  part  of  any  State  constitution 
this  authority,  exclusively  of  a  national  character,  is  found  dele- 
gated to  any  Statu  legislature.  But  this  is  not  all.  The  amend- 
meat  does  not  reserve  the  powers  to  the  States  exclusively,  as 
political  bodies,  for  the  language  of  the  amendment  is,  that  the 
powers  not  delegated,  Ac,  arc  reserved  to  the  States  or  to  the 
peopfe.  To  justify,  then,  the  exercise  of  the  power  by  a  Slate,  it 
is  indispensable  to  show  that  it  has  not  been  reserved  to  the  peo- 
ple of  the  Stale  The  people  of  the  State,  by  adopting  the  Con- 
atitutioo, have  declared  what  their  will  is,  us  to  the  qualifications 
for  office.     And  here  the  maxim,  if  ever,  must  apply,  erpr**no 


CH.  IZ.] 


HOCSK  or  HKPEESENTATlViU. 


469 


uKi'iu  ett  fxelfuto  a/fmiuL  It  might  further  be  nrged,  that  th« 
Cuimtitution,  being  the  act  of  the  whole  people  of  the  Uiiiti'd 
Stnt<)8,  foniicd  aiid  fashioned  according  to  their  own  news,  tt  is 
not  to  be  nsHiimcd,  us  the  Ixwis  of  any  rwifloning,  that  they  hare 
givvti  any  ooiitrul  over  the  fimctionariL-H  on-atod  by  it  to  any 
8tat«,  beyond  what  ift  found  in  the  text  of  the  inatrument, 
Wlicu  such  a  control  is  assorted,  it  is  inutU-r  of  ))roof,  not  of  aa- 
snniption ;  it  iit  niatler  to  be  estAblishud,  us  of  rit^bt.  and  not  to 
be  exercised  tiy  inturpation,  until  it  is  displaced.  Th«  burthen 
of  proof  in  on  the  State,  and  not  on  the  goremiaent  of  the  Union. 
The  affirmative  is  to  be  established;  the  negative  is  not  to  be 
denied,  and  the  denial  taken  for  a  oonccnion. 

§  629.  In  regard  to  the  power  of  a  State  to  prrncribc  the  quali- 
fication of  inhabitancy  or  rcaidcnoe  in  a  district,  as  an  additional 
quali  Heat  ion,  there  in  this  forcible  reason  for  denying  it,  that  it 
18  undertaking  to  act  upon  the  very  qualification  pi-eacrihed  by 
the  Constitution,  as  to  inhabitancy  in  the  State,  and  abridging 
its  operation.  It  ia  prcviscly  the  same  exercise  of  power  on  tho 
part  of  the  States,  as  if  they  should  prescribe  that  a  rcprcHeata- 
tivc  should  ho  forty  years  of  ago,  and  a  citieeu  for  ten  yours. 
In  each  case,  tho  Tt>ry  qualification  fixed  by  tho  Constitution  ia 
completely  evaded  and  indirectly  abolished,  (a) 

§  630.  The  next  clause  of  tho  second  section  of  tho  first  arti- 
cle rcH]K>ets  tho  apportionment  of  the  representatives  among  the 
States.  It  is  as  follovrs:  "Representatives  and  direct  taxes  sliall 
he  a])[>ortionod  among  the  several  States  which  niiiy  be  included 
in  this  Union,  according  to  their  res|)cclivc  mnntxTs,  which  shall 
be  determined  by  adding  to  tho  whole  number  of  froc  persons, 
including  those  bound  to  service  for  a  term  of  years,  and  exclud- 
ing Indians  not  taxed,  three-fifths  of  all  other  persons.  The 
actual  enmneralioQ  shall  bo  made  within  three  years  after  the 
first  meeting  of  the  Congress  of  the  United  States,  and  within 
every  sutisequent  term  of  ten  years,  in  such  manner  as  they  shall 
by  law  direct  1'he  niunber  of  representatives  shall  not  exceed 
one  for  every  thirty  thoimand ;  but  each  State  shall  have  at  least 
one  representative.     And  until  such  enumeratimi  shall  bo  made, 


(a)  It  k  now  nntvimll;  oMmdMl  that 
•  Suu  nuiiiol  pTvMribt  iiHmciuioiM  for 
monban  «f  Co^na^  or  ntmblkh  dl»- 
•btthio*.  Tbiwholamtgcct  Ubtfoad  tlu 


■pbfl*  «f  tt*  povvf*.    CotifrMD  hM  ■]• 
mjr*  dlatgudid  fiuta  nfoUUoai  M  tba 


464 


coKsrmmoK  of  tub  dkited  states.        [book  in. 


the  State  of  New  Hamiwhire  shall  bo  entitled  to  choose  thfe^ 
MuftSKchiwetts  eight,  Rhode  Island  and  Providence  Ptant«tions 
one,  Connecticut  fire,  New  York  «ix,  New  Jeraev  four,  Pcnnarl- 
Tania  eight,  Delaware  one,  Marj-land  sis,  Vir^nnia  ten,  Aorth 
Carolina  Kve,  South  Carolina  five,  and  Georgia  three." 

§  tiSI.    The  first  apportionment  thus  made,  being  of  a  tern;: 
rarj  and  fugacious  character,  requirea  no  commentary.'     Tbo-"^ 
basis  assumed  was  probably  very  nearly  the  eame  which  the 
Constitution  pointed  out  for  all   future  apportionmento,  or,  at 
least,  of  all  the  free  persons  in  the  States.* 

It  is  obvious,  that  the  question,  how  the  apportiooment  should 
be  made,  was  one  upon  which  a  considersMe  diversity  of  jnd 
ment  might,  and  probably  would  exist  Three  leading  priocipl 
of  apportionment  would  at  once  present  themselres.  One  was  tQl 
adopt  the  rule  already  existing,  under  the  confederation;  that  is, 
an  e<iuality  of  representation  and  rote  by  each  State,  thus  gii 
each  Stale  a  riglit  u*  send  not  less  than  two,  uor  more  than  i 
representatives,  and  in  the  determination  of  qneations  each  . 
to  have  one  vote.'  This  wonid  naturally  reecive  en 
from  all  those  who  were  attached  to  the  confederation,  and 
ferred  a  mere  league  of  States  to  a  gorenunent  in  any 
national.*  And  accordingly  it  formed,  as  it  should  seem, 
boaia  of  what  was  called  the  New  Jersey  Plan.*  This  rule  oil 
apportionment  met,  however,  with  a  decided  oppocitiaD,  and  was] 
negatired  in  the  convention  at  an  early  period,  aerea  States] 
voting  against  it,  three  being  in  its  favor,  and  one  being  dirided-'l 

§  682.    Another  principle  might  be  to  apportion  the  repreaen-f 
tati<»i  of  the  States  according  to  the  relative  prv^rty  of  each, 
thus  making  property  the  basis  of  reprenentatiao.     This  mighfe 
commend  itself  to  aome  persons,  hecaose  it  would  introdoee  •' 
aaltttary  check  into  the  legialature  in  regard  to  taxation,  by  se- 
curing, in  sooie  measure,  an  equalitatjaa  ot  the  pablic  burdeat^ 
by  the  voice  of  those  who  were  called  to  Eire  most  towards 

>  Jon.  of  OMiMlka,  lOtli  H}j,  in.  IM,  I«7.  in.  173.  ITS,  ttC 

•  3«mt.  at  OmMdoA.  IS».  mm.    But  m  thi  Mmlbt,  So.  tS. 

>  OmMbmHm,  Alt.  a. 

•  lornn.  U  Om-nmtkm,  111.  1U.  li». 

•  Mr.  FutBODD't  Pluw  Joan.  oT  C-janmtiim.  US  ;   4  Dlkt^  IMHm  (TaM'* 
10na>n|.7*{M.81;  Id.  107  to  11);  Ufli  3  Pbk.  ID«.  SB,  fXR,  sa. 

•  Je«ia.«(OnT«t)««,UtkJ<UM,  tlL    8«  ate  Id.  isa;  1» :  i  BBaTi  DthMa 
(TmWsMiaatMka. 


CH.  tX.] 


H0D8E  OP  nEPBESENTATlTEa. 


465 


common  contributions.*  Thnt  taxation  ou^t  to  go  hand  ia  hand 
with  represcntatioo,  bad  been  a  favorite  tlicory  of  the  American 
people.  Under  the  confederation  all  the  common  expenses  were 
required  to  he  borne  hy  the  Slates  in  projwrtion  to  the  value  of 
the  land  within  each  State.*  But  it  has  been  already  8«cn  that 
tliis  mode  of  contribution  was  extremely  diRicult  and  emharraas- 
ing,  and  unsatisfactory  in  practice,  under  the  confederal  ion.' 
There  do  not,  indeed,  seem  to  bo  any  traces  in  the  proceedings  of 
the  convention,  that  this  scheme  had  an  exclusive  influence  with 
any  persons  in  that  body.  It  mixed  itaelf  up  with  other  consid- 
erations, without  acquiring  any  dociaive  preponderance.  In  the 
first  place,  it  was  easy  to  provide  a  remedial  check  upon  undue 
direct  taxation,  the  only  species  of  which  there  could  be  the 
slightest  danger  of  unequal  and  opprcssivo  levies.  And  it  will 
bo  seen  that  tliis  was  sufficiently  provided  for  by  declaring  that 
representatives  and  direct  taxes  ohould  bo  apportioned  by  tho 
same  ratio. 

§  63S.  In  the  nest  place,  although  projwrty  may  not  bo  directly 
aimed  at  as  a  basis  in  the  roprcftentati»u  provided  fur  by  the 
Coostitulion,  it  cannot,  on  tho  other  hand,  be  deemed  to  be  to- 
tally excluded,  as  will  presently  bo  seciL  In  tJio  next  place,  it 
is  nut  adiiiitlRd  that  property  alone  can,  in  a  free  goveminent, 
safely  bo  rt-litd  on  as  the  boIo  basis  of  representation.  It  may 
be  tme,  and  probably  is,  that  in  tlie  ordinary  course  of  affairs,  it 
is  not  tho  inten-st  or  policy  of  tho«o  who  possess  property  to  op- 
press those  who  want  it.  But,  in  every  well-ordered  common- 
wealth,  persons,  as  well  as  property,  should  possess  a  just  share 
of  influi'Doe.  The  liberties  of  the  people  are  too  dear  and  too 
sacred  to  be  intrusted  to  any  persons  who  may  not  at  all  times 
have  a  common  sympathy  and  common  interest  with  the  people 
in  the  preservation  of  their  public  rights,  pririleges,  and  liber- 
ties. Cliecks  and  balances,  if  not  indispensable  to,  are  at  least 
a  great  Clonse^^'ative  in  the  operations  of  all  free  govemmonta. 
And,  perhaps,  upon  mere  abstract  theory,  it  cannot  be  justly 

>  1  EDiot'a  DcUtM  <T(d«*(  UiDVlw),  W,  S9  ;  Jouni.  at  ConwotloD.  lltk  Jdm^ 
111  i  Id  Mb  Jnlr.  IM ;  Id.  llth  Jnlf.  IM. 

*  Canf«l*n>tia«,  Mt.  8. 

*  JconMli  of  (VinptM,  ITth  F*b.  17S3,  ToL  8,  |l  lt9  to  p  IS);  td.  »th  Sapt- 
17SS,  Vol.  10.  p.  MS  i  I(L  ISlh  A|>rf1.  1783.  Vol.  «,  p.  IM  ;  1  Hlkrt'*  HtUxe*.  M ;  2 
EUiot't  Oot«M.  ns  t  1  Tadc.  Black.  Comm.  App.  tU,  SS0,  2*i  to  !M ;  Tha  Fcdcf 
■IK  No.  »  ;  Id.  yo.  n. 

VOL.  f.  —  80 


46e 


eojrarmmos  of  thb  mnriD  STATn.        [book  in. 


kffinned  that  either  penoas  or  property,  nomberB  or  wefthh,  eaa^ 

uielj  be  trusted,  u  the  final  repoMtaries  of  the  del^Bt«d 

of  go7enimcnt>     By  apportioning  influence  unoag  each,  vifi* 

lance,  cautitm,  and  mutual  checks  are  natnnllf  introduced  and 

perpetuated. 

}  6S4.  The  third  and  retnaininie  principle  was  to  apportic 
the  reprceentativps  amooK  the  States  accordii^  to  their  relatire' 
nnmberB.  This  bad  the  recotomendation  ot  great  simplicitr  and 
nmformitT  ia  its  operatioa,  of  being  genenllv  acceptable  to  tite 
people,  and  of  being  low  liable  to  fmod  and  evaaian  than  any 
other  which  couM  be  devised.'  Bceides.  »lthoa|^  wealth  and' 
property  cannot  be  affirmed  to  be  In  different  States  exactly  in 
propottion  to  the  numbeta,  the;  are  not  so  widely  scparatnl  trom 
it  as  at  a  hoAty  glanoc  mi^t  be  UitagiDcd.  There  is,  if  not  a 
natnnl,  at  least  a  veiy  common  conneotioo  between  them,  nod] 
pertiaps  an  apportionment  of  taxes  according  to  nnmbera  Js 
equitable  a  rule  for  contributions  according  to  relative  wealth  attj 
any  which  can  \>e  practically  obtained.* 

S  685.  The  scheme,  therefore,  under  all  the  circumstances,  of 
making  numbers  the  faasis  of  the  representation  of  the  Union, 
seems  to  hare  obtained  more  general  favor  than  any  other  la  the 
Gonrention,  becanse  it  had  a  natural  and  universal  oofutection 
wiUi  the  rights  and  liberties  of  the  whole  people.* 

$  686.  But  here  a  difficult  of  a  very  serioos  nature  tmat, 
Ttiere  were  other  personii  in  several  of  the  States  than  those  who 
were  free.  There  were  some  peraoos  who  were  bound  to  sernee 
for  a  term  of  years,  though  these  were  so  few  that  Uiey  wnnld 
scarcely  vary  the  result  of  the  general  rale  in  any  important  de- 1 
gree.  There  were  Indiana  also  in  several,  and  probably  in  most, 
of  the  States  at  that  period,  who  were  not  treated  ns  citicena, 
and  yet  who  did  not  form  a  part  of  independent  communities  or 
tribm  exerciaing  general  sovereignty  and  powers  of  govemmoit^ 
within  the  boundaries  of  the  States.  It  was  oeeessary,  therelbr^ 
to  provide  for  those  cases,  though  they  were  attended  with  no 
practical  difficult}'.  There  oeema  not  to  have  been  any  ob}ection 
in  incloding  in  the  ratio  of  representation  persons  bound  to  set^j 

I  TiM  r«d«nE*t.  Ko.  U.  *U. 

*  tht  PofanUit,  ^'o.  U  -.  BMoh«  U  OnvMK  ISth  April.  17S3  (8  JMinwib  <i 


CH.  IX.] 


■OOn  OP  ai!»>RKSENTATirKS. 


467 


Tice  for  a  term  of  years,  and  in  excluding  IndiaM  not  taxed. 
The  real  (and  it  vm  a  very  exciting)  controvcrey  wan  in  regard 
to  lAavMi,  whether  they  nhould  be  included  in  the  enumeration  or 
not*  On  the  one  hand  it  was  contended  that  alavea  were  treated 
in  the  States  which  tolerated  slavery  as  property  and  not  as  per- 
sona.' Tbcy  were  bought  and  sold,  devised  and  transferred,  like 
any  other  property.  They  had  no  civil  righls,  or  political  priv- 
ileges. They  had  no  will  of  tlieir  own,  but  were  bound  to  abso- 
lute obedieuec  to  their  masters.  There  was  then  no  more  reason 
for  including  tliom  in  tlio  census  of  persons  tlian  there  would  bo 
for  including  any  brute  aniiuals  whatsoever.'  If  they  were  to 
be  rcprcMnted  as  property,  the  rule  should  bo  extended  so  as 
to  embrace  all  other  property.  It  would  lie  a  gross  inoquality  to 
allow  repreaentation  for  slaves  to  tJie  SonlJicni  Kiates,  for  that 
in  cCTeei  would  be  to  allow  to  their  nianters  a  predominaAt  right 
founded  on  mere  propBrty.  Thus,  five  thouRnnd  free  persons  in 
a  slave  State  might  ptKiiujsa  the  same  power  to  chonae  a  represen- 
tative as  tliirty  thouaand  free  persons  in  a  non<BUvebolding 
State.* 

§  637.  On  the  other  hand  it  was  contended  that  glares  are 
deemed  persons  as  well  aa  property.  They  partake  of  the  qoali* 
ties  of  both.  In  being  compoll«i  to  labor,  not  for  hiujself,  but  for 
his  master,  in  being  vendible  by  one  master  to  another,  and  in 
being  subject  at  all  times  to  be  restrained  in  his  liberty  and  chas- 
tised in  bis  body  by  the  will  of  another,  the  slave  may  appear  to 
be  degraded  from  the  human  rank  and  classed  with  the  irrational 
animals  which  fall  nnder  the  denomination  of  property.  But  in 
being  protected  in  his  life  and  limbs  against  the  violence  of 
others,  even  of  the  master  of  his  labor  and  liberty,  and  in  being 
punishable  himself  for  all  violence  committed  against  othcra, 
the  slab's  is  no  less  evidently  regarded  by  law  as  a  member  of  the 
society,  and  not  as  a  part  of  the  irrational  creation,  as  a  moral 
person,  and  nut  as  a  mere  article  of  property.^  The  federal 
Coustilutiou  shotild,  therefore,  view  tliem  in  the  mixed  character 


I  i  Pltk.  Hirt.  193  to  tU. 

*  TtM  rolcnUit,  Sol  «4 : 1  EUiaft  DoImcm,  M  to«0 ;  U.  W.  tXX  U*  i  i  Elltot'* 
,D«katM  (Murtla't  Aiinm],  ». 

*  4  KlUoft  \hUlm  |r*tW«  Uin«tM),  «»  ;  14.  M. 
«  i  Elliol'i IMmtm  iMutin*  A<ldn>),  St :  Id.  O'aU'f  WiratH),  M 

*  The  FcdciaUit,  Ko.  H  j  1  BUotti  Dcbatw,  HI,  213. 


468 


CONSTITCTION  OF  THE  tTNITBD  STATtS.  [BOOK  IH. 


of  persons  and  propertv,  which  wa«  in  fact  their  true  obaract«r. 
It  ia  tnte  that  slaves  arc  not  iDclnded  in  the  eatimate  of  repre- 
fientativca  in  any  of  the  l*t«twt  potwessing  them.  Thej  neither 
vote  themiK-lveB  nor  incrciuM;  the  vot«  of  their  masters.  But  it 
ia  also  trtw  that  the  Couatitution  itself  doe»  not  proceed  upon 
any  ratio  of  merely  (]ualifivd  voters,  cither  ua  to  reprcaentativca 
or  aa  to  electors  c^  them.  If,  therefore,  Uioeo  who  arc  not  votora 
are  to  be  excluded  from  the  ennmeration  or'cenaua,  a  similar  in- 
equality vill  exist  in  the  apportionment  amonff  the  Statea.  For 
the  representatives  are  to  be  chosen  by  those  who  are  qualilted 
Totem  for  the  moat  numerous  branch  of  the  State  le^Hlaturo,  and 
the  qualifications  in  different  States  are  eaaentialty  different, 
and,  indeed,  are  in  no  two  Statca  exactly  atika  The  Constitu- 
tion itself,  therefore,  lays  down  a  principle  which  requires  that 
no  regard  shall  be  had  to  the  policy  of  particular  States  towards 
their  own  inhabitants.  Why  should  not  the  eamo  principle 
apply  to  ttlaves  as  to  other  perscHis  who  were  excluded  ii«  voters 
in  tlie  States  ?  > 

§  688.  Some  part  of  this  reasouing  may  not  bo  very  satisfac- 
tory, tnd  especially  the  latter  puri  of  it.  Tlie  distinction  be- 
tween a  free  person,  who  is  not  a  voter,  but  who  is  in  no  sense 
property,  and  a  slave,  who  is  not  a  voter,  and  who  is  in  every 
practical  sense  property,  is,  and  forever  must  form,  a  sound 
groond  for  discriraiDating  between  them  in  every  oonstitutioa 
of  gOTemment. 

§  689.  It  was  added,  that  the  idea  was  not  entirely  a  just  one 
that  representation  relates  to  persons  only,  and  not  to  property. 
Government  is  instituted  no  leas  for  the  protection  of  the  pr<^ 
orty  than  of  the  persons  of  individuals.  The  one  as  well  as  the 
other  may,  therefore,  be  con.<iidered  aa  proper  to  )>e  represented 
by  those  who  are  chared  with  the  gorcnunent  And,  in  point 
of  fact,  this  view  of  the  subject  constituted  tlie  baflis  of  some  of 
the  representative  departments  in  several  of  the  State  govem- 
menta.* 

§  640.  There  was  another  reascm  orged,  why  the  rotes  allowed 
in  the  federal  legislature  to  the  people  of  each  State  ought  to 
bear  some  proportion  to  the  comparative  wealth  of  the  States. 

>  The  Pcdcnlkt,  Ko.  SI  i  1  Tuck.  BlKk.  Camn.  App.  IM,  ISl }  1  EUiot'i  DvbUv, 
Sl^  314. 

*  Th*  FfUnlUt,  ITo.  H :  1  ElUot'a  D«t»t«^  SIS. 


CH.  II.] 


HOraS  OP  REPneSENTAnVKS. 


■169 


It  VIM,  that  States  liavc  not  on  influence  over  other  States,  aris- 
ing from  the  superior  advADtagcs  of  fortune,  aa  individuals  in 
tlie  sainc  State  possess  over  their  ncody  fcllow-eitizons  from  the 
like  eatise.  The  richest  State  in  the  Uuioit  can  hardly  indulge 
the  hope  of  influencing  tlie  choice  of  a  single  representative  in 
any  other  State;  nor  will  the  representatives  of  the  largest  and 
richest  States  ponsesfl  any  other  advantages  in  the  national  le- 
gislature, than  what  rcanlts  from  BU]>er)or  numbers  alone.' 

§  1)41.  It  ia  obvious  that  those  latter  reasons  have  no  just  ap- 
plication to  the  subject.  They  are  not  only  overstrained  and 
founded  in  an  ingenimta  attempt  to  gloss  over  the  real  objec- 
tions, hut  they  have  this  inherent  vice,  that,  if  well  founded, 
they  apply  with  equal  force  to  the  representation  of  all  property 
in  all  the  States;  and  if  not  entitled  to  rttij>cct  on  this  aceount, 
they  contain  a  most  gross  and  tndefensihle  iiie<]iutlity  in  favor 
of  a  sini^le  Rpccies  of  property  (slaves)  exixtiiig  in  a  few  States 
only.  It  might  have  been  contended,  with  full  as  mud]  pro< 
pricty,  that  rice,  or  cotton,  or  tobacco^  or  potatoes  Bhould  have 
been  exclusively  taken  into  account  in  apportioning  the  repre- 
sentation. 

8  642.  The  tnith  is,  that  the  arrangement  adopted  by  the  Con- 
■stitulion  was  a  matter  of  compromine  and  concession,  confessedly 
unequal  in  ita  operation,  but  a  necessary  sacrifioe  to  that  spirit 
of  conciliation  which  was  indispensable  to  the  union  of  States 
having  a  great  diversity  of  interests  and  jiliysical  condition  and 
political  institutions.'  It  was  agreed  that  slaves  should  be  rep- 
resented under  the  mild  ap]>ellation  of  "other  fenonti,"  not  as 
free  persons,  but  only  in  the  proportion  of  three-fifths.  The 
clause  was  in  su)>stance  borrowed  from  tlic  resolve,  posaed  by 
the  continental  Congress  on  the  18th  of  April,  1T83,  rQCommend> 
ing  the  States  t«  amend  the  Articles  of  Confederation  in  such 
manner  that  the  national  expenses  should  !«  defrayed  out  of  a 
common  treasury,  "  which  shall  bo  supplied  by  the  several  States, 
in  proportion  (o  the  whole  number  of  white  or  other  free  inhab- 
itants, of  every  age,  sex,  and  condition,  including  those  bound 
to  servitude  for  a  term  of  years,  and  three-fifths  of  all  other 
pcraons,  not  comprchcndixl  in  the  foregoing  description,  except 

<  TIm  TfAinXM,  No.  SI. 

*  1  Etliot-*  IVbtlM.  31^  SIS ;  3  ntlc.  Rirt.  23$  to  StI ;  td.  915.  SM,  M7,  SM ;  1 
K(ol*«  Coimn.  Zlfi,  S17 ;  T&a  FedenlUt,  Not.  S7,  54 ;  3  Dili  171,  ITT,  ITS. 


4T0 


coiismtmoir  of  thk  trKmo  srins.        [book  m. 


lodivts,  not  pAjing  taza,  ineuifa  State" *(«)  la ocdcr  to roooo^J 
eile  tlie  noa-flUiYehoUiDg  State*  to  this  proruioo,  — ofter  ebim  I 
wts  iiuert«d,  that  direct  tutes  shoold  be  ^iporti<MMd  in  tbt  i 
nunocr  w  representatives.  So  that,  theovetieallj',  Kprw— ntatiou 
and  uxation  might  go  pari  /mmh.*  Th»  promioc,  bomrcr, 
is  mort  specious  than  solid;  for,  vhile  in  the  levy  at  direct 
taxea,  it  apportioas  them  on  thrae-fifths  of  penotu  not  free,  it, 
on  the  other  hand,  reallf  exempta  the  other  two-£fiba  tnui  being 
taxnl  at  all  as  propertj-.'  Whereas,  if  direct  ta-xes  had  b«en 
appurtigned.  as  opoo  principle  thej  ou^t  to  be,  acoordiag  lo  tlia 
real  raloe  td  propertv  within  the  State,  the  whole  of  tho  atavea 
vDold  have  be«n  taxable  as  property.  Bat  a  far  more  striking 
ioeqMiitjr  has  been  disclooed  b;  the  practical  operatiooo  of  tlM 
gfrnnuamL  The  principle  of  repreaentatiaii  is  eoiMiat  and 
uniform;  the  lerf  of  direct  taxea  is  occaAional  and  rare.  In  the 
eoone  of  forty  rears,  no  more  than  three  direct  taxes*  hate 
levied;  and  those  onlj  ander  tctt  extraordinaty  and 
circnmitancea  Tlio  ordinary  expenditare*  of  the  goremment 
ate,  and  alnya  hare  been,  deriied  from  other  aonrees.  Im* 
posts  opon  foreif^  importstiaas  hare  avpplied,  and  viU  geaei^ 
ally  mpply.  all  the  "«*"««■  wanta;  and  if  these  riMwdd  iwt 
famish  an  adequate  rereooe^  excises  are  next  itaoifed  to,  as 
tlie  Borast  and  most  eonTenieot  mode  of  tanfrst  IHieet  tues 
eoostitnto  the  last  resort,  and  (as  mi^t  bare  been  foreseaa) 
voold  nerer  be  laid  ntil  other  resoarees  hsd  failed. 

§  MS.  Tiewod  in  its  proper  U^  as  a  real  eossptowse,  in  ■ 
case  ci  conflicting  Inteiesta,  for  the  ooounon  good,  the  peoviaMO 
is  entitled  to  great  praise  for  its  moderatian,  its  aim  at  practical 
utility,  and  its  tendew?  to  sadafr  the  people  that  the  Union, 
brntaed  by  all,  oof^  to  he  dear  to  all,  by  the  priTileges  it  < 
as  TcU  as  the  blesrings  it  ■eearaa.  It  had  a  auterial 
in  racooeiling  the  Sootbera  States  to  other  prorisions  m  tte 
Coestitiitiaii,  sad  especially  to  the  power  «f  nsfciag  eoBHNndsl 

I  Jow^  if  Oi^n^  Vm.  TA  &  p.  IM 1 1  BBoiri  TKIirtw.  H 

■  -TV  FriMate.  H*  U  -.  J«b^  alOmwt^^m.  Itt  Mj-.  m.  ITS ;  H.  171.  ITS, 
lTt.irMSI^llS;M.W»;M.lT«;iaiM^Di>1»M,C.«ll,»;M.»lS. 

■  iTv^M'aBkck.OMM.tsi^iaiiinw^ihfaM^a^^ 

>  U  17M,  UU,  lau.    TWlMMipMU^i^aMiaUIS. 


(•)»!■] 


CB.  IX] 


ilk.  * ' 
B0CS8  OP  BSPRESENTATIVKS. 


471 


KgtilatioriK  t]y  »  mere  majority,  irliich  waa  thoiif;)it  p&culiarty  to 
favi>r  the  Nortiiem  Stat«fl.'  It  lind  «oiuctittic«  bcca  compUinixl 
of  as  •  grie^'auce;  but  he  who  wishes  woll  to  hid  cuuntry  ii-ill 
adhere  steadil}'  to  it  as  a  fuDdamental  policy  which  cxtiiiguiahca 
noDK!  of  the  most  miacbieroun  souroea  of  all  political  diriaiuiia, 
—  thusu  founded  on  gcoKraphtcal  poAiUonii  aud  dnmr-Htic  institu- 
tions. It  did  noty  bowcrcr,  paits  tbv  convontion  without  objec* 
tion.  Upon  itii  finit  introduction,  it  was  aupported  hy  the  votes 
of  nine  Stutiv  against  two.  In  subsequent  stages  of  the  discua- 
sion  it  mot  with  some  opposition;'  and  in  some  of  the  State 
conventions  it  wiu  strenuously  resisted.'  The  wish  of  erery 
patriot  oti^it  now  to  be,   nyuiricat  in  pace, 

§  t>44.  Another  part  of  tJie  clause*  re^anla  the  periods  at  which 
the  cuumentiuu  or  census  of  the  inhabit^uitsof  the  United  States 
shall  be  taken,  in  order  to  provide  for  new  apportionments  of 
reprcseutatiree,  according  to  the  relative  tncreuse  of  the  popula- 
tion of  the  Staler.  Various  propositiuiis  for  this  purpusu  wcro 
laid,  at  different  times,  before  the  convention.*  It  was  proposed 
to  have  the  census  taken  onoe  in  fifteen  years,  and  in  twenty 
years;  but  the  vote  hnally  prevailed  in  favor  of  ten.*  The  im- 
portance of  this  prorision  for  a  decennial  ceiutus  can  scarcely  bo 
overvalued.  It  is  the  only  effectual  means  by  which  the  relative 
power  of  Uie  several  States  could  be  justly  represented.  U  the 
system  first  established  had  been  unalterable,  T017  gross  incqnal* 
ities  would  soon  have  taken  place  among  the  States,  from  the 
very  unequal  increase  of  their  population.  The  representation 
woold  soon  have  exhibited  a  system  very  analogous  to  that  of 
tlie  riou»c  of  Commons  in  Great  Britain,  when-  old  and  decayed 
borout^hs  send  reprcsentatiws,  not  only  wholly  dieproportionata 
to  their  importance,  but  in  some  cases,  with  scarcely  a  single 
inluibitaut,  they  match  tlic  representatives  of  the  most  populous 
counties.* 

§  645.  In  reinrd  to  the  United  State«,  the  slightest  examina- 
tion of  the  apportionment  made  under  the  first  three  censuses 

■  1  EUkt^  DthalMt  SIS,  tlS. 

>  Joimiklo(ODii««Mioa.  lllh  Jium,  111.  118.  8m«1w  Id.  Utk  Jolj,  198, !««,  17(^ 
9U,  2U  :  4  EllM't  DtbUM  (Y*M't  HiMtw).  •*. 

*  I  ElIJai-»  IVlKtaik  E8,  M,  HO,  Ml.  SIS.  SIS,  S41. 

•  JomnHl  of  Cbnnatiaa.  103,  Mi.  Iff7.  ICS.  ItW,  ITS.  174,  IBO. 

*  jMnial  of  OMTantMU,  ttth  July,  ISS,  ITO,  ITS.  180. 

•  1  Black.  OMnnt.  ISS,  173.  174 ;  B»k  on  OouiiL  eb.  4.  p,  41. 


472 


coNsnruTioK  op  the  mitTGD  STATEa.         [book  m. 


viU  demonstrate  this  conclusioD  id  a  very  striking  manner.     The 
repneeatation  of  I>elBware  remains  as  it  was  at  the  first  appor- 
tionment;  tliotte  of  New  Hampshire,  Rhode  Island,  Connecticut,] 
New  Jcr«c^,  and  Maryland  have  had    but  a  small  comparath 
increase;  whilst  that  of  tlassachnaetta  (ioclading  Maine)  hasi 
swelled  from  eight  to  twenty;  that  of  Xev  York,  from  six  to 
thirty>four;  and  that  of  Pennsylvania,  from  eight  to  tveuty-six. 
In  the  mean  time,  the  new  States  have  sprung  into  being;  and 
Ohio,  which  in  1803  was  only  entitled  to  one,  now  cotintit  four- 
teen reprcsentatircs.     The  oensns  of  1831  usbibita  still  moro 
striking  resulta     In  1790,  the  whole  population  of  the  Uoitod ' 
States  was  about  three  million  nine  bondred  and  twrntj-uloe 
thousand;  and  in  1830,  it  was  about  twelve  million  eight  hun- 
dred and  fifty-six  thousand.     Ohio,  in  1833,  cuotaiaed  at  letstj 
one  million,  and  New  York  two  million  of  inhabitants.     TbcMt 
£act8  show  the  wisdom  r^  the  provision  for  a  decennial  appor-J 
tiooment;  and,  indeed,  it  would  otherwise  have  hajtpened 
the  ajstem,  however  aound  at  the  be^nning^  would  by  this  time  j 
hatve  beea  prodncdTe  of  grosa  abose^  and  profaafaly  hare  engeih-] 
dared  fends  and  dtacootenta  of  tbemaelyaa  lofficieot  to  have 
oeeaaiooed  a  dissolution  of  the  Cnion.     We  probably  owe  this 
provisicn  to  those  in  the  eonventioe  who  were  in  favor  of  a  na- 
tianal  government  in  prefierenoe  to  a  mere  ooofederatiao  of 
SMea.> 

§  $4&  The  next  part  of  tlie  elaase  relates  to  the  total 
ol  the  Honae  of  Reprewtativea.  It  declares  Uiat  ''tlw  nnnbarl 
of  reprcaentatiTCs  Aall  not  exceed  ooo  for  eraiT  thirty  I 
This  was  a  sabjrct  of  great  interest ;  aad  U  has  faeea  awcrted 
that  seareel;  any  article  at  the  whole  QjMtilutJM  ■rpwi  to  be 
rendered  man  worthy  of  atteotiaa  by  the  ««i^  of  character, 
and  Ao  apfarcnt  fotve  of  argoamt,  with  whidi  it  wss  origiBally 
■ssailfd  »  The  tumAer  fixed  hf  the  CtmstitattoK  to 
dw  body,  in  the  first  iMtoDB,  aad  ■ma  a  • 
lixty-fi^ 

{  err.  Sevenl  objedieM  vera  aifed 
Fba^  that  so  onall  a  ■■aler  «f  rtprwgBtatiHM  ««de  W  «b 
ad  iifiisiiiiy  ftf  the  fiaUie  Islisiiili      Seaaaflr,  ttat  tbej 

1  ^  Jm^  <(  CkwMHi^  lOk  lifc  ML  I7C  na.  UB. 
■  nt  ^h«te.  5«.  n :  >  a»-.  Mmmm  «V  )  U.  M  ;  IL  Sff  ; « I 
(Ta«  ad  Um^^  Uov  «>  Go.  OMmL  tm  taa. 


CB.  Dt.] 


HOUSE  OP  RBrtl^ENTATiraB. 


478 


vould  aot  possess  a  proper  knon-lcd)!«  of  the  local  circomstanciet 
of  their  nnmerous  coDsttUients.  Thirdly,  that  they  vontd  bo 
taken  from  that  clafl.t  of  citizens  which  would  sympathiKC  least 
with  the  feelingfl  of  the  people,  and  be  most  lik«l}-  to  aim  at  a 
pcrnianont  elevation  of  the  few,  on  the  depression  of  the  many. 
Fourthly,  that,  defective  as  the  namber  in  the  Tint  instance 
would  be,  it  would  bo  more  and  raoro  disproportionate  by  the  in- 
crease of  the  populutiun,  and  the  obstacles  which  would  pruvent 
ft  correspondent  increase  of  the  ropresentatiTes.' 

§  648,  Time  and  experience  have  demonstrated  the  fallacy  of 
some,  and  greatly  impuired,  if  they  have  not  utterly  destroyed^ 
the  force  oC  all  o{  these  objections.  The  fears  which  were  at 
that  pi'riod  BO  studiously  cherished,  the  alarms  which  were  so 
forcibly  spread,  the  ditn^ers  to  liberty  which  were  bo  strangely 
exaggerated,  and  the  predominance  of  aristocratical  and  exclu- 
sive power  which  was  so  confidently  predicted,  hare  all  vanished 
into  air,  into  thin  air.  Truth  has  silently  dissolved  the  phan* 
tonis  rained  by  imaf^inations  heated  by  prejudice  or  controrersy, 
and  at  the  distance  of  forty  years  wo  look  back  with  afltonishment 
at  the  laborious  reastmin^  which  was  employed  to  tramjuillize 
the  doubts  and  assuage  the  jealousies  of  the  people.  It  is  lit, 
however,  even  now,  to  bring  this  reasoning  under  review,  be* 
cause  it  inculcates  upon  us  the  important  lesson,  how  little 
reliance  can  be  placed  upon  mere  theory  in  any  matters  of  gov- 
enunent,  and  how  difficult  it  is  to  vindicate  tlio  most  sound  prac- 
tical doctrines  against  the  specious  questionini;  of  iuf^enuity  and 
hostility, 

§  649.  The  first  objection  was  to  the  smnllness  of  the  number 
composing  tho  House  of  ReprescntativeA.'  It  was  xaid  that  it 
was  unsafe  to  deposit  the  legislative  powers  of  the  Union  with  so 
small  a  lK>dy  of  men.  It  was  but  the  shadow  of  representation.* 
Under  the  confederation.  OongreBS  mitrht  consist  of  ninetyK)ne; 
whereas,  in  the  first  instance,  the  Ilouse  would  consist  of  hut 

I  Th«  r>dmlM,  Xa.  U ;  1  EUUt'a  Dol«tM, « ;  U.  Ml,  Ul,  Ud.  US.  SM:  330, 
E!l  to  3tS  i  Id.  3«  to  13S. 

■  It  U  raiuilubU  tliat  the  AmvricMi  writer  whom  t  k>*«  •rmal  t(n«*  dbd  ItkM 
u  ofpattu  «ibt«ction>.  He  Mjn,  "  Tlis  DkUoiuJ  Houm  of  RvpttMntalirm  will  b#  at  tnt 
too  lug* ;  Hiii  bMMlW  ntjr  b*  tDoeb  too  lugn  to  delibaoto  uiil  dniile  apco  ibc  bad 

mm "    Thouf^to  npoa  du  PoHtiMl  SItHlian  of  tha  Unhcd  Sbitaa  of  Aamiw 

{WofOMIn:^  nut. 

>  S  Annr.  HotMn,  »7,  Ul,  »17,  SSI,  SSL 


474 


coNsrrnrriox  or  tbb  timrED  states.        [book  m. 


six^-five.  There  wu  no  certainty  that  it  vould  ever  be  io- 
ereaftcd,  as  that  would  depend  upon  the  legioUture  itself  in  il« 
fnture  ratio  of  Rpportioomrnta;  and  it  was  left  completely  tn  it« 
discretion,  not  only  to  iuorcaso,  but  to  dtmintsb  the  present  niuQp' , 
ber.'  Under  such  cireumslaoces,  there  was,  in  fact,  no  consti- 
tntional  Rccuritr,  for  the  vhole  depended  upon  the  mere  iabegritj 
and  patriotiaut  of  those  vho  should  be  called  to  administer  it* 

§  tioO.  In  r^ply  to  thene  suiJigeBtinns  it  was  said  that  the  pres- 
ent number  would  certainly  be  adequate  until  a  census  was  taken. 
Althou^  nnder  the  confederation  ninety-one  members  might  lie 
chonen,  in  point  of  fact  a  far  less  number  attended.*  At  the  very 
first  census,  supposing  the  lowest  ratio  of  thirty  thousand  wera 
adopted,  the  numbers  of  ri-prescntativcs  would  be  increased  to 
one  hundred.  At  the  expiration  of  tw«nty-firc  yeats  it  would, 
upon  the  same  ratio,  amount  to  two  boodrod,  and  in  Efty  years 
to  four  bundn.'d.  a  number  which  no  one  could  doubt  would  be 
sufficiently  lur^  to  allay  all  the  fears  of  the  moftt  sealous  ad- 
mircni  of  a  full  rcprescntatioo.*  In  regard  to  the  possible  dtmi* 
nution  of  the  number  of  representatives,  it  uiii»t  l>c  purely  aa 
imaginary  ease.  As  every  State  is  entitled  to  at  least  one  repre- 
iontative,  the  standard  nei-er  would  probably  bo  reduced  below 
the  population  of  the  smallest  State.  The  populatiuo  of  I>ola>' 
ware,  whicli  increases  more  slowly  than  that  of  any  other  Stote^ 
would,  under  such  circomstanoes,  furnish  the  rule.  And,  U  tba 
other  States  increase  to  a  very  lai^  degree^  it  is  idle  to  snppoM  < 
that  they  will  erer  adopt  a  ratio  which  will  give  the  smallest 
State  a  greater  relatire  power  and  infiuence  than  thenuelves.* 

§  6.>1.  But  the  question  itself,  what  ia  the  proper  and  oonTcn- 
ient  number  to  compose  a  representatire  legislature,  is  as  tittlt 
susceptible  of  a  precise  solution  as  any  which  can  be  stated  in 
the  whole  circle  of  poIiticB.  There  is  no  point  upon  which  differ' 
ent  nations  are  more  at  variance,  and  tbe  policy  of  the  Ameri- 
can Suites  thcmseh'es  on  this  subject,  while  tliey  were  colomea 
and  since  they  have  become  independent,  has  been  exceedingly 
discordant     Independent  of  the  differences  arising  from  the 


I  1  Eltioi't  TMMm,  H,  S7 ;  14  304,  SW.  *N  t  >  tOUoft  tkUXm,  51^  H  i  Id.  M. 

I I  EUiot*  THhLUM.  fio5 :  a  euim'*  immm.  as,  m,  isi,  soa  i  Id.  3S3,  azi. 

•  t  Elliot'*  D«1»tM,S7.  MB. 
(  T1i«  Fcdmlut.  No.  S5 ;  I  Sllot'l  tMMm,  914,  21$.  137. 

•  1  ElHM-a  DOMm,  313.  M». 


OB.  )X.] 


B0D3B  OP  REPRESENTATTTIS. 


m 


po|>ul&tion  And  ftlu  of  t)ic  States,  there  will  be  found  to  bo  great 
dtTorsities  among  those  whose  population  and  size  nearly  ap- 
proach each  other.  In  Mnssacbosetta  the  House  of  Representa- 
tives ts  composed  of  a  number  between  tliree  and  four  hundred; 
in  Pennsylvania,  of  not  more  than  one-lifth  of  that  number;  and 
In  Nov  York,  of  not  more  than  one-fifth.  In  Pcnnsjlvanin  tbo 
repr«»ontatives  do  not  bear  a  greater  proportion  to  their  oonstitu* 
cnta  thnn  one  for  every  four  or  fivo  thousand.  In  lUiode  Island 
and  Maasachuaetta  they  bear  a  proportion  of  at  least  one  forever; 
thousand.  And  according  to  tlio  old  constitution  of  Georgia,  the 
proportion  may  be  cjirriod  to  one  for  every  ttfn  eiecture.' 

5  652.  Neither  is  there  any  ground  to  assert  that  the  ratio 
between  the  repreM>ntat)ves  and  the  pi'Ople  ought,  upon  principle, 
to  be  the  same,  whether  the  latter  be  nuniermn  or  few.  If  the 
rcpreeentalivps  from  Vii^nia  were  to  be  ohosoa  by  the  Htandard 
of  llhodo  Island,  they  would  then  amount  to  five  hundred,  and  in 
twenty  or  thirty  years  to  one  thousand.  On  the  other  hand,  th« 
ratio  of  Pennsylvania  ap])Ued  to  Delaware  would  reduce  the  rep- 
reacntative  assembly  to  seven.  Nothing  can  be  more  fallncioua 
than  to  found  political  calculations  on  arithmetical  principles. 
Sixty  or  seventy  men  may  be  more  properly  trusted  with  a  given 
degree  of  power  than  six  or  seven.  But  it  does  not  follow  that 
six  or  seven  hundred  vould  be  proportionably  a  better  depositary. 
And  if  the  suppusilion  is  carried  on  to  six  or  seven  tliouHand,  the 
wholo  reasoning  ought  to  be  reversed.  The  truth  is,  that  in  all 
oase«,  n  certain  number  seems  necessary  to  swruro  the  l>enelita  of 
free  o>iisultntion  and  diHiMiflsion,  to  guard  against  too  easy  a 
combination  for  improper  porpnsea,  and  to  prevent  hasty  and  ill- 
advised  legislation.  On  the  other  band,  the  number  ouglit  to  be 
kept  within  a  moderate  limit,  in  order  to  avoid  tlie  confusion, 
intcm])erance,  and  inconvenience  of  a  multitudct.'  It  waa  a  fa- 
mous naying  of  Cardinal  Pe  Retz,  that  every  public  assembly  con- 
sisting of  more  than  one  hundn-d  members  waa  a  mere  mob." 
But  surely  this  Is  juat  us  incorrect  as  tt  would  bo  to  arcr  that 
every  one  which  consisted  of  ten  members  wo«iId  be  vise. 


>  Till  F«d<>n1ut,  No.  U.  8m*1m  tk*etMa««aMlntloMof  tint  pwtod.  1  Kllat'* 
IMaiM.  314.  lie,  ttO.  23A.  138.  Kl  9S3. 

*  Tbo  P>d*nJM,  Ko.  55  :  1  EIIm  k  Dchats.  Sid.  SM,  SM,  Ol,  S11,  ttS.  MS,  140, 
t£3  ;  S  Wil«nn'»  Utr  l,*cl  ISO ;  I  lUU'i  Oomn.  317. 

I  3  WilMo'i  Urn  Lwt.  ISO. 


4T6 


ooMnrunox  or  tse  l51uu  ctatc 


$  60&.   llie  qnotian  then  is,  and  fonnr  mask  he,  m  eTeiy  ■»- 
tioD,  a  mixed  qaestioo  of  Kiiind  poller  and  discrstkiD  witfc  i^er- 
ence  to  its  size,  its  popaUtioa.  its  intitatiana.    Ha  local  and 
fbjBicai  condttitm,  and  all  the  other  eticaaulaaees  aifcrtJag  ila 
on  IntcresU  and  eonrenieoce.     As  a  pnaort  nnaber,  ais^-fire 
was  snfficieat  for  all  the  exigeudta  at  tbe  United  Sist«t, 
It  was  irisMt  and  safnt  to  kara  all  fntnre  gnealioiw  oi 
to  be  jnd^  of  by  tbe  fotnre  condition  and  exigeaeiea  of 
Union.     What  groond  ooold  there  be  to  anpinae  that  sndi  a 
Ti'rin*r''  ehooen  InennialtT,  and  renponstble  to  their  cmatit 
woold  Tolnntarilj'  betnj  their  trusts  or  refuse  to  follow-  the 
lie  will  ?    The  verjr  state  of  the  coantry  forbade  the  auppoaJtioa. 
'tttej  vonld  be  watched  with  the  jealoosy  and  the  power  of 
State  tegisUtum. '    Tbej  would  hare  the  faif^iest  indaoaBOBto ' 
perform  their  dotr.     And  to  snppose  that  the  poasoaioo  «l 
for  so  short  a  period  coald  blind  them  to  a  sense  of  Aeir 
interests,  or  tempt  th^m  to  destror  die  poblie  libertiea,  was 
improbable  as  anything  which  coold  be  within  the  scope  ol 
imagiostion.*     At  all  CTcota,  if  they  were  eaittr  <d  misooodl 
their  removal  would  be  ioeTttablc,  and  their  soccessots  woold 
abore  all  false  and  oormpt  coodoct.     For  to  reason  otherwise 
would  be  eqmvalcnt  to  a  declaration  of  the  nnirersal  corroj 
of  all  auakiQd,  and  the  otter  impracticability  of  a  repol 
government.     The  ooiqjreafl   which  conducted  m  tiinm^ 
Berolotion  was  a  less  Dmnerona  body  than  their  saocessors  will 
be.*    They  were  not  chosen  by,  nor  responsible  to,  the  people  at 
large;*  and  though  appointed  from  year  to  year,  and  liable  tn  be 
recalled   at    pleasure^  they  were  frcncrally  continwd    for   thivtti 
years.     They  held  their  consultations  tn  secret.    They  transacted ' 
all  oar  foreign  affairs.     They  held  the  fate  of  their  country  la 
their  hands  during  the  whole  war.     Yet  they  never  betrayed  oar 
rights  or  our  interests.     Nay,  calumny  it«elf  never  ventuxod  l«, 
whisper  anything  against  their  purity  or  patriotUm.' 
{  654.   The  snggestion  is  often  made  that  a  nomerooa  lepre- 

•  Tba  Fadenliit,  Ncl  56j  1  Kniif  ■  D«tMl«  SM,  SS.  IM. 
■  n«  r«Anmliit.  Vo.  Ui  ]  Enk>f«  [MmU^  9M,  ttS.  StS. 

*  OmtnUj  tVr  *"*  cbMcn  hf  llw  8UM  ItgUHam ;  bat  la  ts«  ScalM,  niwilj. 
Bfcod*  IdaftJ  ud  OoHiMttent,  tb*r  «<»•  <^m«  ^  dto  pwfl*.     n>  r^dwJM.  j 
So.  M. 


CH.  a."] 


BOCSB  OP  BEPRKSKNTATirKS. 


m 


Bentotioa  is  n«oc«ftai7  to  olitnin  the  confidence  of  the  people.' 
Tliis  is  not  geDerally  true.  Public  confidence  will  bo  ca»i\y 
gained  b;  a  good  adminiBtratioQ,  and  it  viU  be  secured  b^*  no 
other.'  The  remark  made  upon  another  occasion  hy  a  great  luUD 
ia  correct  in  regard  to  reprcsentatiTca,  rum  numtrantur,  pondtr- 
antur.  Dclavrunit  has  jiut  as  much  conSdence  in  her  representa- 
tion of  twouty-ouc  aa  New  York  haa  in  Itcnt  of  Aixtj'-dve,  and 
Masaacfausetta  has  in  bcre  of  more  than  three  hundred.^ 

3  (>55.  Nothing  can  be  more  unfair  and  impolitic  than  to  sub- 
stitute for  Ki^imcnt  nn  indiscrimloate  and  unbutmdod  jealousy 
with  which  all  reasoning  must  bo  vaiu.  The  sincere  friends  of 
lil>ertj-,  who  gire  tlicmsclves  up  to  the  extravagances  of  this  pas- 
sion,  inflict  the  moat  serious  injury  upon  their  own  cause.  As 
there  is  a  degree  of  depravity  in  mankind  which  requin-s  a  cer- 
tain degree  of  circumspection  oDd  distrust,  so  there  arc  other 
qualities  in  human  nature  which  justify  a  certain  portion  of  l-s- 
tcciu  and  coiifidfuco.  A  republican  government  prc^supposes  and 
requires  the  existence  of  tbe«e  qualities  in  a  higher  degree  tliaa 
any  otlicr  form;  and  wholly  to  destroy  our  reliance  on  tiiem  is 
to  sap  all  tlie  foundation  on  which  our  liberties  must  rest* 

§  656.  Tlti;  next  objeetioo  was,  that  the  House  of  Repnwonta- 
tiros  would  be  too  small  to  possesfl  a  dun  knowledge  of  the  in- 
terests of  llii-ir  coiiHlituents.  It  was  said  that  the  groat  extent  of 
tlic  United  States,  the  variety  of  its  interests  and  occupations  and 
institutions,  would  rcfjuire  a  very  numerous  body  in  order  to  bring 
home  information  necessary  and  proper  for  wise  K-gislatton.' 

§  637.  In  answer  to  this  objection,  it  was  admitted  tliat  the 
representative  ought  to  be  acquainted  with  the  interests  and  ctr- 
cumstttDccs  of  hia  constituents.  But  this  principle  can  extend 
no  further  than  to  those  interests  and  circumstances  to  which 
tlie  authority  and  care  of  the  representatiye  relate.  Ignorance 
of  rery  minute  objects  which  do  not  He  within  the  compass  of 
legislation  is  consistent  with  every  attribute  necessary  to  the 
performance  of  the  legislative  trust*  If  the  argument,  indeed, 
required  the  most  minute  knowledge,  applicable  even  to  all  the 

1  1  Elliot'*  Detatia,  9IM,  217. 

•  Id.  S17,  23S. 

•  1  ElUat->  n«b«tw.  Sir,  SSS,  Ml,  U3;  S6S,  tM  i  S  VSU't  D*1»tM,  t07,  tl«. 

•  Til*  r*d«Kll)it.  Ko.  S5  i  1  niiaf*  D*t*tM,  ««,  MB. 

•  1  Elfiof*  DclMM,  SIP,  3K.  »S,  »%  333,  S«l. 

•  TIm  rolenlut,  Ho.  SS  -,  1  EUiof  ■  IkimXm,  t»,  SSff  ]  1  Eanfi  Oamm.  tir. 


478 


OOiranTCTlOH  OF  tBE  tTMlTED  StAIES. 


[ 


profemiKl  objects  of  legislation.  It  woald  overturn  itself;  for  thftj 
thing  vould  l>e  uttvrljr  impracticable     No  reTreseotatire^ 
ID  the  State  or  nutional  councils,  ever  eoald  know,  or  eren 
tend  to  know,  all  arts  and  tcienee*  and  trades  and  subjects 
vhich  le^slation  maj  operate.     Onu  of  the  great  duties  of  • 
re»eDtati\'e  is,  to  inquirv  into  and  to  obtain  the  necOTSArr  infor- 
DMtion  to  enable  him  to  act  visclr  and  eorreetlj  in  partic 
caMS.     And  this  is  attained  bj  bringing  to  the  investigatfc 
sndi  cases  talents,  indastT7,  experience,  and  a  spirit  of  conpro- 
benslTe  iDciuiry.     No  one  vill  pivtcnd  that  he  who  is  to 
law*  ought  not  to  be  well  instraned  in  their  nature,  int 
tioD,  sad  practical  results.     But  irhat  would  be  said  i^   iqxia 
such  a  tfaeorjr,  it  was  to  be  aerioosljr  urged  that  Boae  but 
cal  lavjrera  oo^t  ey«r  to  be  eligible  as  legislator*  t    The 
is,  that  we  most  rest  aatiafied  with  general  attainmeats;  and  it 
is  viaionsrr  to  ntppoae  that  any  one  man  can  tvprcaeot  all  tb^k 
skill  and  interests  and  bnsiness  and  occnpatiaaa  ef  all  bis  eoD- 
stjtuents  in  a  perfect  manner,  whether  the;  be  few  or  taukj. 
The  most  that  can  be  done  is,  to  take  a  eomprebenaire  sorrsT-  • 
the  general  outlines,  and  to  search,  as  oocasioo  nu;  reqaire,  for^ 
that  more  Intimate  information  which  belong*  to  particular  sob- 
jects  Tvqiiiring  immediate  legislation. 

$  668.    It  is  br  no  means  true  that  a  larg*  repnsentatioa  im . 
BMCSSary  to  understand  the  interest*  of  the  people.     It  is  not] 
•ither  theoretically  or  practically  tine  that  a  knowledge  of 
interest*  is  augmented  in  pr<^wrtion  to  the  increase  al 
talirea.)    The  interests  of  the  State  of  New  York  are  probably  i 
well  nnderstood  bT  its  sixtj-fire  repcesentatiTe*  a*  Aose  o( 
Haasachusetts  by  its  three  or  four  hundred.     In  tmet,  hlfJior  i 
qnalifieations  will  osaally  be  son^t  and  require!  where  the  n^'i 
reaentatiTes  are  few  than  where  they  are  many.     And  ther«  wW 
also  oe  a  higher  ambittoo  to  serre  where  tbe  aatallnesa  of  Ihe^ 
number  creates  a  dveirahle  distinctiria,  than  lAere  it  ta 
with  many,  and  of  course  indlTidnsI  importaoM  f*  fiisniitiillj 
diminished. 

§  659.   Besides,  in  considering  tiiis  sobject,  it  is  to  be  bmoI-^ 
lected  that  the  power*  of  the  geneiml  gorenunent  are  limited, 
and  embrace  only  sach  objeel*  •*  are  cf  a  national  cfaaradnr. , 
InfonnstioB  ot  peculiar  local  intereats  is,  oonaaiwatly,  ef 

1  1  BHst^  DvtaH,  <9ft. 


CO.  IX.] 


HOUSE  OF  RBPEteSESTATtTBS. 


«ni 


value  aod  Importance  than  it  would  be  in  a  State  legislahtn, 
whcro  the  povcni  are  general.!  xti^  knowledge  required  of  a 
uutionul  representative  is,  therefore,  necensnrily  of  a  more  large 
aiul  couipn-lK'naivo  cliaractor  than  that  of  a  mere  State  repreacn- 
tativc  Hiniitu  iufurmation,  and  a  thorou^  knowledge  nf  local 
interests,  personal  opinions,  and  private  feelinga,  are  far  more 
important  to  the  latter  than  the  former.^  Nar,  the  very  devo* 
tioa  to  local  view*  and  fcelinpi  and  interestn,  which  naturally 
tends  to  a  narrow  end  scirish  policy,  may  bo  a  joat  disqualifica* 
tion  and  reproach  to  a  member  of  Coi^reM.>  A  lil>enil  and  en- 
liglitened  policy,  a  kaowlodgo  of  national  riglilit.  duties,  and 
interests,  a  familiarity  with  foreifni  ^vernments  and  diplomatic 
history,  and  a  wide  surrey  of  the  operatioits  of  commerec,  agri- 
culture, and  manufactures,  seem  indispensable  to  a  lofty  dla- 
charge  of  bis  functions.*  A  knowledge  of  the  peculiar  interests 
and  products  and  institutions  of  the  dilTorent  .Slates  of  the  Uniaa 
is  doubtless  of  great  value ;  but  it  \e  rather  as  it  conduces  to  the 
performance  of  the  higher  fonctiona  alrea<ly  spoken  of  than  as  it 
srmpathixeo  with  the  loeal  interetita  and  feelinga  of  a  particular 
district,  that  it  is  to  be  estimated.'  And  in  regard  to  those  local 
facts  which  are  chiefly  of  use  to  a  member  of  Congress,  tbey  are 
precisely  thoi^p  which  are  most  easily  attainable  from  the  docu- 
mentary evidence  in  the  departments  of  the  national  govenmient, 
or  which  lie  open  to  an  intelligent  man  in  any  part  of  the  8tata 
which  he  may  represent*  A  knowledge  nf  commerce  and  taxa> 
tion  and  manufacturea  can  be  obtained  with  more  certainty  by 
inquiries  con(hieted  through  many  than  through  a  single  channel 
of  communication.  The  representatives  of  each  State  will  gen- 
erally bring  with  them  a  con»ideral>le  knowledge  of  its  laws  and 
of  the  local  interests  of  their  districts.  They  will  often  have 
previously  serred  as  members  in  the  State  legislatures,  and  thos 
have  become,  in  some  measure,  acquainted  with  all  the  local 
views  and  wants  of  the  whole  State.' 

I  Th«  rdcnUit,  Ko.  54. 

•  1  BlUotV  D«b>U^  238,SS9,SG3i  SUoTd'tDtbtUafiairSB).  ISO;  Tke  Pedenl. 
1«,No.h;. 

*  1  Rlliot'a  XHluim.  tM. 

*  I  BUrot'i  DtbitM,  SS8,  S»,  tfS  1  Tha  Mmlltt.  Ko.  54. 

•  The  Fxhntliit,  Ho.  SS ;  1  Elliofi  D«bMM,  SM  HI.  Sa  tM,  SSS. 

•  TIm  FoaanluL  Nol  B4 ;  1  EUkt'a  Dutata,  MS,  «»,  U*. 

*  Tke  Fadenlirt,  No.  H. 


4m 


COSSJTITUnON  OP  THE  OWTED  ST*' 


[book  in. 


§  660.  The  fnnctioiia,  too,  of  a  represeiitatiT«  in  Ctatgnes  re- 
qtiire  very  diiferent  (]nalificati<nis  and  attainmeots  from  those 
rcqaiml  in  a  State  legialatore.  Infomuiticm  rcUtire  Lo  locsl 
objects  is  eaxiiy  obtained  in  a  singlv  StiUc,  for  Uwrc  U  no  dif- 
fcrc&ce  in  its  laws,  and  ita  int«n>«ta  an  but  liltlo  diTonified. 
But  the  itrgij(lation  of  Congress  nacbcs  orer  all  the  rotates ; 
as  th«  laws  and  local  circnmatance*  of  all  differ,  the  informa'^ 
tion  which  is  requisite  for  safe  legislatioa  is  far  more  difficult 
ami  various,  and  directs  the  attention  abroad  rather  than 
home.'  Few  members,  comparatJTeJj  speaking  will  be 
ignorant  of  the  local  inten»ts  of  their  district  or  State; 
time  and  diligence,  and  a  imro  onion  of  sagacity  and  public 
spirit,  are  indispensaUe  to  aroid  cgr^ous  mistakes  in  nationatj 
measures. 

}  661.    The  experienoo  of  Gr«at  Britain  upon  this  subject  for- 
nlafaes  a  rcrr  iiutroctivtr  commcDiarr.     Of  the  five  hundred  aadi 
fiftf-eitiiit  members  of  the  House  of  Common^  vat  ninth  mn\ 
elected  by  three  hondred  and  slxiy-four  penona,  and  one  half] 
by  &ve  thousand  ser«a  hoadrad  and  tweocv-three  penona.' 
this  half  certainly  have  little  or  m  claim  to  lie  deemed  the  gnac>^ 
dians  of  the  iDtere«ts  of  the  people,  and  indoed  an  notoriously 
elected  by  other  interests.'    Taking  the  pofmlstion  of  the  vholay 
kingdfno,  the  other  half  will  not  sTenge  bkw«  than  one  repre^' 
■entatiTe  for  about  tweotr-nino  thousand  of  the  inhabitants.*  («) 
It  may  be  adi]ed,  that  nothing  Is  mote  oammoa  than  to 
men  for  represeotatires  of  large  and  populous  cities  and  districtl^  ' 
who  do  not  reside  therein,  and  cannot  be  pfesoned  to  be  Inti> 
mstely  acquainted  with  their  local  iatereati  and  feelinga.     Tbe-i 
choice,  bowerer,  is  made  from  high  nkotiraa,  a  regard  to  talent^  J 
public  senices,  and  political  sagacity.     And  whaterer  may  be] 
the  defects  of  the  rcpreecntatiye  system  of  Great  Britain,  vetj'l 

■  TW  F«tetfkt  5*.  M ;  14.  S«.  S. 

■  8m  Mi.  Chn«in^  MM  (HI,  W 1 

fma  thM  it  hwhiM 
W^a.    S«alK4U«.I. 

>  TW  P«te*ltal,  Xa^  3Si  tiirf,  Henl  f«l—|*j.  &  I,  «*.  7. 

•  n*  rMniiM,  No.  H,  a. 

1h»1 


pnMi,  bMt  •biob  it  •{» 


■«fr  Miiiiik 


CH.  IX.] 


HOOSK  or  REPRBSCNTAl 


481 


few  nt  the  <)ef«ctf)  of  its  IpgUIation  have  Wen  iini>iit<^d  to  the 
ignorance  of  tlie  HoiiiU!  of  Comniona  of  the  true  iiilon-sts  or  cir- 
cuniHtnni'cft  of  the  people' 

§  662.  In  the  historj:  of  the  Cotutitution  it  U  a  ciirinnii  fact, 
tbttt  with  somu  BtuU-Hmvit,  possetisiug  high  [Militicsl  diHtinctinn, 
it  was  inudc  a  fundumvatal  objoctiuo  aguinitt  tJio  eatabliBhment 
of  auj  nutional  Icgislaturo,  that  if  it  "  trcro  compoHcd  of  so  nu- 
merous a  bod/  of  men  as  to  rci^rescnt  tho  inturt-sts  of  all  the 
iobabitonls  trf  the  United  8tat«s  in  tlic  usual  and  tnic  ideas  of 
representation,  the  expense  of  8np]>oi-tiiig  it  would  be  intolerably 
burdensome ;  and  that  if  a  few  only  were  rested  with  a  power  of 
legislation,  tbe  intei'eflta  of  a  gremt  majority  of  the  inhabitants 
of  the  United  States  must  be  ne<;p88ari !  y  unknown;  or,  if  kuown, 
even  in  the  first  stagra  of  the  o|>era(ii>ns  of  the  new  government, 
unattended  to. "  ^  In  their  riew  a  £ree  government  seems  to  hare 
been  ineompatible  with  a  great  extent  of  territory  or  population. 
What,  then,  would  become  of  Great  Itritain,  or  of  France,  under 
the  present  oonatitutiiNt  of  their  legislatire  departmenta  ? 

5  668.  The  next  objcetion  vrua  that  the  representatives  wonld 
be  choAen  from  that  class  of  cititcns  which  would  hare  the  least 
sympnthy  with  tbe  maas  of  the  people,  and  would  be  most  likely 
to  aim  at  an  ambitiona  sacrifice  of  tho  many  to  the  aggrandize* 
ment  of  Ibefew.'  It  was  aaid,  that  the  Author  of  Nature  had 
bestowed  on  aome  men  ^ater  cai^acitics  tJian  on  others.  Birth, 
education,  talents,  and  wealth  created  distinctions  among  men 

:  Tiaihle,  and  of  an  much  influence,  as  Htara,  gar1cr»,  and  rib- 
In  every  society  men  of  tbie  class  will  cummaud  a  aupe- 
rior  degree  of  respect ;  and  if  tho  government  is  so  constituted  as 
to  admit  hut  few  to  exercise  its  iKiwers,  it  will,  according  to  tho 
natural  course  of  things,  Iw  in  tlivir  bauds.  Men  in  tho  mid- 
dling class,  who  an  qualified  as  representativea,  will  not  be  so 
anxious  to  be  chosen  as  those  of  tlie  first;  and  If  thoy  tm,  they 
will  nut  have  the  means  of  so  much  influence.* 


t  The  F«lmlut.  .N'o.  50.  Sw  alw  Dr.  FnukUn'i  B«in>rlu,  2  ntk.  HU.  213 ;  1 
Wilon-«  U<r  Leet.  43t,  iSS;  PlOer't  Honl  Phikmphy.  B.  4^  eb.  T  ;  1  Kcttl's  Cmbih. 
S19. 

'  iMUr  «f  Uranv.  TatM  uiil  Laatlnit  to  Got.  Gintoa,  I7B3  (8  Ann.  HolNB^ 
15ii,  159). 

>  Ttw  Pxlenliat,  No.  97 ;  1  Elliot'*  D*UI«t,  SM^  831.  8w  aW  Tho  F«cl«nltii, 
Ifa.  U. 

•  1  Eltiat-i  DelwtM,  Sll,  SSI. 
voi-i.  — 31 


482 


COKSTlTtmOK   OP  TBB  UKETBD  STATES.  [bOOR  m. 


§  6ft4,    It  was  anstrered,  that  tho  objection  itself  !»  uf  a  very 
txtraordinnry  cbaracler;  for  vhile  it  is  levelled  against  a  pre- 
toudi^l  ulifrarchy,  in  principle  it  strikes  at  the  very  root  of  a  re- 
publican go\-i-mmeut ;  for  it  ■iippoaes  tlie  people  to  be  iucapuble 
of  making  a  proper  clioico  of  reprewntatlTOB,  or  indifferent  to  it^ 
or  utterly  cormpt  iu  tlte  exercise  of  the  ri^t  of  suflfnure.     It 
would  not  be  contended  that  the  first  class  of  societv,  the  men  oi 
talents,  experience,  and  wealth,  ought  to  be  constitaiioBallv  et- 
eloded  fi-om  office.     Such  an  attempt  would  not  only  be  onjoat, 
but  suicidal ;  for  it  would  nonrish  an  influence  and  betimi  wilhiai 
the  state,  which,  u]>on  the  very  stiji^Msitioo,  wtmld  oontintially' 
exert  its  whole  means  to  destroy  the  goremment  and  onrerthrow 
the  liliertios  of  the  people.'     What,  then,  is  to  he  donef     If  ttieJ 
people  are  free  to  make  the  choice,  they  will  naturally  maitc  ifcn 
from  tliat  class,  whatvrer  it  may  be,  which  will  in  their  ofiinjon 
be«  promote  tlicir  interests  and  preserve  their  lihertiea.'    Noei 
ar«  the  poor,  any  more  than  the  ricli,  beyond  temptation  or  lor* 
of  power.     Who  are  to  be  t!ie  electors  oC  the  representatiTM? 
Not  the  rich,  more  than  the  i>oar;  not  the  teamed,  more  tluuij 
the  ignorant;  not  the  beira  of  distingai^ed  families,  more  tfaaa 
the  children  of  obscurity  and  nnpropitious  fortune.*    Tbd  elect-, 
ors  are  to  be  the  body  of  the  people  of  the  Cnited  States,  jeidoM 
of  their  rights,  and  accustomed  to  the  exercise  of  their  paw»r. 
Who  are  to  be  the  objects  ol  their  dw»oe  f    Brery  cititen,  wboae 
merit  may  commend  him  to  the  esfeeem  and  confidence  of  his 
fellow-eituena.     No  qtwlificatioo  oi  wealth  or  birth  or  reliviea 
or  civil  professioo  is  recognised  in  tiie  Oaosdtution ;  and,  e>oii-  '■ 
seqnently,  the  people  are  tm  to  choose  from  any  rank  of  society 
aeeording  to  tiieir  pleasure.  * 

$  60S.  The  persona  who  shall  be  elected  repceBCBtatires  nmst' 
hare  all  Ae  inducements  to  fidelity,  Tigilsno^  and  a  derotioo 
U>  Ae  iatcnsts  ol  the  peo[de  wlddi  eaa  poaalbly  exisL  They 
mtiat  be  prwamed  to  be  Mlected  from  their  Itnown  rirtan  and 
estimable  qualities,  as  well  aa  from  tbeir  talents.  Thrr  most 
have  a  desire  to  retua  and  exadt  tiieir  iqntaUua,  and  be  ambi- 
tiooa  to  deserve  the  cootiiiBUiee  of  ttat  poblic  &Tor  by  wUeli  i 

>  1  OBaf « DtiMm  sat  m 

*  n*  yWirilfaC  Ita  IS :  14.  Itau  SS:  M.  ITo.  S7. 

*  T^  n  hnlhr.  ya.  S7  ;  U.  S*.  W ;  U.  X«.  «B. 


OB.  IX.3 


BOOSE  OP  REPREBEM'A'nrES. 


481 


they  liuvc  bocQ  ele\-«t«d.  Thorc  i«  in  evvrj  broast  a  scnsibilitj 
to  iiuirkii  of  bonor,  o(  fnvor,  of  esteem,  aiid  of  confidonce,  which, 
apart  from  all  oonsideratioos  of  inte^ee^  18  some  pledge  for 
grateful  and  benevolent  retnrits.'  But  tli^  intercut  of  the  repre- 
aentatire,  which  naturally  liinda  him  to  his  coaatitucnta,  will  be 
■treogtliened  by  motivea  of  a  aottinh  character.  His  election  ii 
bieuniat;  and  he  miuit  iw>on  rotuni  to  tJie  common  rank  of  a  cili* 
sen,  QDless  he  is  re-elected.  Does  he  deaire  otJioei'  Tlien  that 
very  desire  will  secure  bis  fidelity.  Does  he  feel  the  value  ot 
public  diatinctions  ?  Then  bia  pride  and  vanity  will  equally  at^ 
tach  bim  to  a  ^vcmment  which  afforda  hiin  an  opportunity  to 
share  in  itM  honors  and  distiactioiu,  and  to  the  [Mtoplo,  who  alone 
cau  cunfvr  tlii^io.*  BveiJca.  ho  vuii  luakv  no  law  which  will  not 
wotgb  an  hvai-ily  on  himself  luid  bis  fricnda  aa  on  olhcn;  and 
h«  can  introduce  no  oppression  wbicb  must  not  be  bomo  by  him- 
self,  whi-n  he  itinkit  back  to  tbc  common  level.  Aa  fur  uaurpa- 
tiou,  or  a  pcrpi-luati<^n  of  Lis  authority  independent  of  the  popular 
will,  that  its  hopeless,  uutit  the  period  shall  have  arrived  ia 
which  the  people  are  ready  to  barter  their  liliertie«,  aud  are 
rcwly  to  become  the  volmitary  slaves  of  any  deepot*  Wheuever 
that  period  shall  arrire,  it  will  be  useless  to  speak  of  guardians 
or  of  ri^ita.  Where  all  arc  cornipt,  it  is  idle  to  talk  of  virtue. 
Quis  eiutodiet  cu»tofie»  f  Who  shall  keep  watch  over  t]ie  people 
when  they  choose  to  betray  themselTefl  T 

§  6^.  The  objection  itself  is,  in  truth,  utterly  destitute  of 
any  solid  foundation.  It  applies  with  the  snuie  force  to  the  State 
legislatures  tut  to  that  of  the  L'nioo.  It  attributes  to  talents  and 
wealth  and  nrabition  an  ioflueace  which  may  bo  exerted  at  all 
times  and  everywhere.  It  speaks  in  no  doubtful  lantniage  that 
republican  gorumnient  ia  but  a  shadow,  and  incB|)able  of  pre- 
anriog  life,  liberty,  or  property.*  U  supposes  that  the  peopl« 
are  alwaya  blind  to  their  true  interesta,  and  always  ready  to  be- 
tray them,  that  tlioy  can  safely  trust  neither  themselves  nor 
others.  If  such  a  doctrine  be  maintainable,  all  the  constitutions 
of  America  are  founded  in  egregious  errors  and  delusions. 

{  6C7.  The  only  perceptible  difference  between  the  eaao  of  a 
reprcaentative  in  Congress  and  in  the  State  Ivgialaturo  as  to  this 
point  is,  that  the  one  may  bo  elected  by  6ve  or  six  hundred 


■  Til*  FoUnlUt,  No.  S7. 

•  Id.  Ho.  57  i  1<L  Km.  U,  tt. 


■  Th»  Fedenlbl,  No.  G7. 

•  Id.  So.  »7 ;  Id.  NiM.  SSk  M. 


484 


coNSTmmos  op  the  rotted  states.         [book  in. 


citizODS,  and  th«  other  by  as  many  thonsands.'    Etcti  this  is  troe 
only  in  pnriiciilnr  ^taKs;  for  tiie  repr«8«ntati?cfl  in  Maasacfao- 
»ctt«  (who  are  all  chosen  by  the  towns)  may  l)e  elected  by  six 
thoitsaiid  citiwnit,  n»y,  by  any  larger  number,  according  to  thsj 
population  of  the  town.     But,  giving  the  objection  its  fuU 
oontd  this  circumstance  make -any  solid  objection?    Arc  not  the 
seuatora  in  aevoral  of  the  States  chosen  by  as  large  a  number  I^ 
Have  they  been  foimd  more  corrupt  than  the  reprvHtrntatires  I 
Is  the  objection  supported  by  re«wn/    Can  it  be  said  that  five 
six  thousand  citieens  arc  tuoro  easily  cormptod  than  fire  or  six' 
hundred  ?*    That  the  aggrpa:ate  mass  will  bo  more  under  the  in- 
fluence of  intrigue  than  a  portion  of  it  ?    Is  the  emueqttrmet  de- 
ducible  from  the  objecti<Hi  admiMible?     If  it  is,  then  we 
deprive  the  people  oi  all  choice  of  their  public  eeirants,  In  atll 
eases  vhere  numbers  are  not  required.*    What,  then,  is  to  Im 
done  in  those  States  where  thv  ^rcrnors  are  by  the  State  con-'i 
stitution  to  be  chosen  by  the  people  i    Is  the  objection  warranted'' 
hyfaettT    The  representation  in  tlio  British  House  of  CommoDS 
(as  has  been  already  stated)  t-ery  little  exceeds  the  proportioa  of 
one  (or  tvcry  thirty  thousand  inhabitants.'     Is  it  tme  that  the 
Hoas«  of  Commons  ha\-«  ele\-at«d  thcmselros  upon  the  rain  of  the 
many  ?    Is  it  true  that  tlie  representatives  ol  borou^  hare  b«s  j 
more  faithful,  or  wise,  or  honest,  or  patriotic  than  those  of  ciUea  I 
and  of  counties?    Let  ns  ooue  to  our  own  country.     The  di»-< 
tricts  in  Now  Hampshire,  in  which  the  senators  an  chosen  im- 
mediately by  the  people,  are  nearly  as  large  as  will  be  Deceaasiy 
for  her  reprcMntatires   ia  Coognas.     Those  in  MasaschusBtts  ^ 
come   from  districts  having  a  larger  popolstioo,  and  those  in 
New  York  from  districts  still  larger.     Id  New  York  and  Albany 
the  members  of  assembly  are  elected  by  nearly  as  many  nitara  as 
will  be  required  for  s  member  of  Coagnwe,  calenlating  on  the 
number  of  sixty-five  only.      In  boom  ol  tbo  ooonties  of  Pennsyl- 
vania the  State  Te|>resentativY>s  are  eleetcd  in  distrlels  nearly  as 
■lurift  as  those  required  for  the  federal  representstires.     In  the 
eity  of  niiladelphia  (eemposed  of  sixty  tfaoosaiid   iahshilnntB) . 
every  elector  has  «  rifdit  to  TOto  for  esoh  of  the  re|maeaXattTes 
in  the  State  legislslure,  and  aetnally  elects  a  singie  "*—'*'"  to 
tfaeexeeultve  oanaeil.*    These  ate  teets  which  danoostnrts  tfa«, 


•  M.  5m.  M,  ST. 


■  U.  It*.  ST. 

•  Id.  Xft  (I. 


•U.Vii.st. 


CH.  IX.] 


B0D8I  OP  BEPRBSBNTAHVES. 


485 


faUacr  of  the  objoction.  for  no  one  will  pretend  that  the  rif^ilitfl 
and  liberties  of  Uiene  States  are  not  as  well  maintained  amd  u 
well  underatood  by  their  etenatora  and  representatives  us  thouc  of 
any  other  States  in  the  Union  by  theira.  Thero  is  yi-t  one 
stronger  case,  that  of  Connecticut;  for  there  one  branch  of  Uic 
k'^islature  is  ao  cooatituted  that  each  member  of  it  is  elected  bjr 
the  whole  Rtatt-,' 

§  CCS.  The  fPiDaining  objection  was,  that  there  was  no  se- 
curity that  the  number  of  memlwrs  would  be  augmented  from 
time  to  time,  as  the  progrcfiu  of  tht-  population  might  demand,* 

§  669.  It  is  obvious  that  this  objection  is  exclusively  founded 
upon  the  supposition  that  the  people  will  be  too  corrupt^  or  too 
indiffereiitf  to  si-k-ct  proper  ropresentativra,  or  that  the  repre- 
sentatives when  chosen  will  totally  disrei^rd  the  true  intermts 
of  their  constituents  or  wilfully  betray  them.  Either  supposition 
(if  the  prccedinj^  remarks  are  well  founded)  Is  oquully  inudiniiui- 
ble.  There  are,  however,  souie  additional  consideratioos  which 
are  entitled  to  grcAt  weight.  In  the  first  place,  it  is  observable 
that  the  federal  Constitution  will  not  suffer  in  comparison  witJi 
the  State  constitutions  in  regard  to  the  security  which  is  pro- 
vided for  a  gradual  au^mentutiou  of  the  number  of  representa- 
tives. In  many  of  them  the  subject  lias  been  left  to  tlie  discretion 
of  the  k-gislature.  and  csporioucc  has  thus  far  demonstrated 
not  only  that  the  power  is  safely  lodged,  but  that  a  gradual  in* 
crease  of  representatives  (where  it  could  take  place)  has  kept 
pace  with  thui  of  the  constituents. '  In  the  next  place,  as  a  new 
census  is  to  take  place  witliin  every  suocessivo  ten  years  for  the 
avowed  purpose  of  readjusting  the  rspresentation  from  time  to 
time  according  to  the  national  exigencitrs,  it  is  no  more  to  be 
imagined  that  Congreu  will  abandon  ita  proper  duty  in  this  re- 
spect than  in  respect  to  any  otlier  power  confided  to  it  Every 
power  may  be  abused,  every  duty  may  be  corruptly  dfsvrtcd. 
But  aa  the  power  to  correct  the  evil  will  recur  at  least  bieuniuUy 
to  the  people,  it  is  impossible  that  there  can  long  exist  any  pub- 
He  abnso  or  dereliction  of  duty,  unless  the  peoplu  connive  at 
and  encourage  the  violation.'  In  the  next  place  there  is  a  pecul- 
iarity in  the  federal  Constitution  which  must  favor  a  constita- 

>  Ths  P«aon1i>U  Ko.  S7. 

t  ThB  FsUniUt.  No.  U I  1  EUiot'i  DcUtM,  *M.  Ml. 

■  Tht  Fnknliit,  Ho.  M.  *  t  EHMt'i 


4M 


CONSnTDTIOK  OP  THB   tTXtTBD  STATES.  [BOOK  tn. 


tlonal  aii^rmMitation  of  tho  rcpresratatlTcs.  0»e  branch  of  the 
Datioiinl  li'^cislature  U  elected  l>y  tltc  people,  the  othi>r  hy  the 
States,  tn  the  former,  oonsequentJ^,  tlie  laf^  SUtOB  will  bare 
mora  woight,  in  Iho  latter  the  tuimller  States  will  have  the  ad- 
vantage.  From  thi^  cm'um.4taiioe  it  may  Ite  fairlv  inferred  that 
tbe  larger  States,  and  epeciallr  thone  of  a  growio^  population, 
will  Iw  strenuoiift  adriK-atea  for  incrcasitiK  the  uumber  and  wei( 
of  thnt  part  of  the  legislature  in  which  their  inllm-aco 
dwuinates. 

§  t>TO.  It  mav  1h>  said  that  there  will  be  an  antasrontst  infla- 
cnce  in  the  Senate  to  prvvent  an  ant^nentatioo.  Bat,  upun  a 
ekae  view,  thU  objection  will  be  (onod  lo  low  moat  of  ita  weight 
In  the  first  plaee,  the  Hooae  of  Bc|inMntat4««s,  behie  a  oo-or 
aate  brauefa,  and  direetlj  cmBnatiag  from  tiie  people,  and  sf 
bag  the  known  and  declared  mbh  of  the  majoritr  of  the  peopla^l 
will,  upon  errrr  qi>raiioo  of  this  natiue,  have  noamall 
a«  to  the  means  of  iufltienee  and  iwigtaaee.  In  the  next  pli 
tiie  contest  will  not  be  to  be  decided  laerai;  by  the  rotes  of  i 
SMet  and  imall  Siatm,  oppoaed  to  each  olfaef^  bat  by  States 
TBtemediate  sixe*,  approaching  the  two  nUimja  bjr 
advancva.'  Her  will  aaturallr  arrange  tbraaelvci  on  tibe 
side  or  the  other,  aceordin^  to  circumitaBoca ;  and  eannol  be 
ealcolated  a|x>n  w  Meatified  pesmaaeMiv  vitb  eiifaer. 
in  the  new  Stataa,  and  dnw  wtaar  pofolatMB  n 
whethei  tber  are  preat  «r  small,  Aere  will  be  %  eaaataat  t«ti- 

iiiiij  III  fa ^iwiBliliiwiii  irf  Ihi  maiwliiiiia.  wi,  ii 

tike  largv  Stidea  mtj  mmf^  H  br  maVlM^  iiiaHinliiMwi  i< 
aiHiwLiBftia—  Ml— 1  mlitiiii  «(  wdi  cAer.*    la  the  thM 
n»«f  ■^iiMiBliiliiiii  vOl  feme 
rf ftupiaifiii  i^pHM  iar  ^  wm^  ^ 
ia  iAerwvf*k.  H  win  faeW  the  iMt-auiM*  id  tfca 

■l^ireit  a  piiwatal  afkaaoeaitlMeipanliaBaif ' 


Itricraam."    TV  B< 

lwiwaadM|t« 

mUkt 


CH.  IX.] 


BODSi  or 


LT1TB9. 


487 


I 


I 


§  6T1.  Such  ia  a  brief  viev  of  the  objections  arged  agalost 
this  [lart  of  the  Constitution,  and  of  the  answers  given  to  them. 
Time,  as  biia  been  already  intimated,  has  alreadj*  settled  them 
by  itH  u«-n  iircsistible  demonstrationa.  But  it  is  impossible  to 
withhold  our  tribute  of  admiration  from  those  enlightened  state** 
men  wliuxe  profound  rewoiiin^  and  mature  wisdom  enabled  the 
people  toiH-u  the  true  path  of  safety.  What  was  then  prophecy 
and  ai^nic-iil  hiw  now  bceome  (act  At  each  aticccssive  cousiia 
the  number  of  representatives  has  been  K^tduully  auirmcnted.^ 
lu  1192.  the  ratio  «tlo|jtcd  was  88,000,  wliicli  gave  an  a^rcf^te  of 
one  hundred  and  six  representatives.  In  1802  the  same  ratio  was 
adopted,  which  gavQ  an  a^^gate  of  one  hundred  and  forty-one 
members.  In  1811  the  ratio  adopted  was  85,000,  whieh  gavo 
an  abrogate  of  one  hundred  and  eighty<oae  membeis.  lu  ISii 
tite  latio  adopted  was  40,000,  which  gave  an  ai^regate  of  two 
hundred  and  ten  membei's.  In  181J12  the  ratio  adopted  was 
47,700,  which  gave  on  aggr^ate  of  two  hundred  and  forty 
members.* 

§  072.  In  the  mean  time  the  TToufte  of  Representatives  has  si- 
lently acquired  vast  intlueiice  and  power  over  public  opinion  by 
its  immediate  connection  and  sympathy  with  the  people.  No 
complaint  has  l>oen  urged,  or  oould  now  with  truth  Ik  urged,  that 
it  did  not  understand,  or  did  not  represent,  the  interests  of  the 
people,  or  bring  to  the  public  councils  a  competent  knowledge 
of,  and  devotion  to,  tlte  local  interests  and  feelin^^  of  its  con- 
stituenlii.  Nay,  so  little  is  and  »o  little  has  tike  force  of  this  ob- 
jection been  felt,  that  several  States  have  voluntarily  preferred 
to  elect  their  representatives  by  a  general  ticket,  rather  than  by 
districta.  And  the  electors  for  President  and  Vice-President  are 
more  frequently  chosen  in  that  than  in  any  other  nuuiner.  The 
representatives  are  not,  and  never  have  been,  chosen  exclusively 
from  any  hi);h  or  privilegod  cUuis  of  society.  At  this  moment, 
and  at  all  previous  times,  the  House  has  been  composed  of  men 
from  almost  every  rank  and  class  of  society, —  |>lanter8,  farmers, 
manufacture ra,  mechanics,  lawyers,  physicians,  and  dinnes;  tlte 
rich  and  the  poor;  tiic  educated  and  the  uneducated  men  of  gen- 
ius; the  young  and  tlie  old;  the  eloquent  and  the  taciturn;  the 

>  Act  of  17»S,  ch.  21 ,  Aet<>riMX«h-li  jlet  of  ISll.ch.  Bj  Act  oTlESa,  dkU) 
1  Tack.  Blick.  Cuiiini.  App.  190 ;  lUak  on  Ccnuitntioii,  ii. 
*  A<4  a(  SM  H«y.  Uti,  (di.  »l. 


4S8 


CONSnTDTTOK  OP  THE  UNITED  STATES.  [BOOE  III. 


stateaman  of  a  h&lf-ocntar;,  and  the  aspirant  juat  relcatscd  Iroos* 
bia  academical  stadiea.     Merit  of  every  sort  has  thus  boon  able 
h)  aasert  its  clainia,  and  occasional!}-  to  obtain  its  jiist  rewards. 
And  if  an^  complsint  could  justly  be  madv,  it  would  b«  that  the 
choice  had  sometiaes  been  directed  by  a  spirit  of  intolerance,'.  J 
tfaat  foT^t  everything  but  its  t>«-n  creed ;  or  by  n  spirit  of  party, 
that  remembered  evcrytbitiif  but  its  own  duty.     Such  intirmities, 
however,  are  inaopambli,'  from  the  condition  of  human  natore; 
and  their  occurrencv  provc«  nothing  more  than  that  the  moral, 
like  the  j^raicol,  world  is  oocasionalty  visited  by  a  whirlwind 
or  deluged  by  a  storm- 

§  673.  II  remains  only  to  tako  notice  of  two  c|ualificatioa8  of 
the  general  principle  of  rcprcMontaiion,  which  are  ingraft^  oa 
the  clause.  One  is,  that  each  State  &ball  have  at  least  oae  rep- 
resentative ;  the  other  is  that  already  quoted,  that  the  number  of 
representatives  shall  not  exceed  one  for  every  30,000.  The 
former  was  indispensable  in  order  to  secure  to  each  iStntv  a  just 
representation  in  each  branch  (d  the  legislature;  which,  as  the 
powers  of  each  branch  were  not  exactly  co-extensive,  and  espe- 
cially as  the  powLT  of  ori^nating  taxation  was  exclosively  veated ' 
in  the  flouse  oC  Representatives,  was  indispensable  to  preserve 
the  ei|uiility  of  Ihc  small  States,  and  U>  reconcile  them  to  a  sur- 
render of  their  sovereignty.  This  proriso  was  omitted  in  the 
6nt  draft  of  the  Constitntion,  though  proposed  in  nne  of  the 
preceding  resotutioDS. '  But  it  waa  adopted  without  rosistancQ 
when  the-  draft  passed  under  the  solemn  discussion  of  the  coaveo- 
tion.)  Tlie  other  was  a  matter  erf  more  controveny.  The  urigi- 
Bal  limitation  proposed  was  40,000;'  and  it  was  not  until  thd 
very  last  day  of  the  session  of  the  cooTcntiun  that  the  number 
was  reduced  to  30,000.*  The  object  of  fixing  some  limiiauun 
was  to  prercnt  the  future  existenoe  of  a  very  numerous  and  un- 
wieldy House  of  BeprcaentatiTes.  Hm  friends  of  a  w-tiffnal 
government  had  no  fears  that  the  body  would  ci-cr  beocoie  toa 
small  for  real,  effective,  protecting  servioe.  The  danger  was, 
that  from  the  natural  impulses  of  the  popular  will,  and  the  do- 
sire  of  ambiiioofl  eaadidatos  to  attain  office,  the  number  would 


1  TiiH—1  if  nwilhw.  u:,  IS^  90*.  zu. 
•  twi— I  at  OwwUea.  Stfc  Aag.  p.  nt. 
»  JoBiatltt  Oamwmtkm.  UT.  3U,  Sas.  SM. 
«  JcMwd  it  CmtmumL,  ITA  Sip.  im.  f.  MS. 


OH.  IX.] 


H0U8B  OP  BEPRESKNTATrvKS. 


48« 


N 


» 


be  MOD  swotlcQ  to  un  uiirt-aMOnublc  ftiic,  »o  that  it  would  at  once 
gCD(!rftt«  and  combine  factiuiw,  obstruct  dulilx-TatiuiM,  aiid  intro- 
duce and  perpetuate  turbulent  and  niali  couUflclH.' 

§  674.  On  this  subject  let  the  Federalist  speak  in  its  own  fear- 
leM  and  eiprcssivc  Innguagot  "In  all  legislative  axKeiublies,  the 
greater  the  nnml>er  comitosing  them  mar  be,  the  fcwvr  will  the 
men  be  who  will,  in  fact,  <]irect  their  proceedinga.'  In  ttie  Gritt 
jilaoe,  liie  more  numerous  any  a^flemblj*  majr  be,  o(  whatever 
charact«i-8  comiMwed,  the  greater  is  known  to  be  the  ascewlency 
oi  pSMion  over  reason.  In  the  next  place,  the  larger  the  num* 
ber,  the  greater  will  be  the  proportion  of  members  of  limited 
information  and  weak  capacities.  Mow,  it  is  precisely  on  char- 
acters of  this  description  tliat  the  eloquence  and  address  of  the 
few  are  known  to  act  with  all  their  force.  In  the  ancient  rc- 
pablica,  where  the  whole  body  of  the  people  assembled  in  per- 
son, a  Hinglo  orator  or  an  artful  statesman  was  generally  seen 
to  rule  with  as  complete  a  sway  as  if  a  sceptre  had  been  placed 
in  his  single  hand.  On  tlie  same  principle,  the  more  multitudi- 
nous a  n^presentative  asHcmbly  may  be  rendered,  the  more  it  will 
partake  of  tho  infirmities  incident  to  coUecttve  meetings  of  the 
{)cople.  lirnorance  will  be  the  dnpe  of  cunning,  and  passion  the 
slave  of  s<>;>)iistry  and  declamation.  The  people  can  never  err 
more  ttian  in  supposing  that  in  multiplyini;  their  representatives 
beyond  a  certain  limit  they  strengthen  the  barrier  against  the 
government  of  a  ievr.  Experience  will  forever  admonish  them 
that,  on  the  contrary,  after  securing  a  aulTicicnt  number  for  tbe 
purposes  of  safety,  of  local  inforniutiun,  and  uf  diffiutive  sympa- 
thy, they  will  counteract  their  ovm  views  by  crery  addition  to 
their  rvprcsenlativc!!.  The  oountcnance  of  the  governiikcnt  may 
become  mure  dcmt^cratic,  but  the  soul  that  animates  it  will  be 
more  olit^rchic.  The  machine  will  be  enlarged,  but  the  fewer, 
and  oUvii  tho  more  secret,  will  bo  the  springs  by  which  its 
motions  arc  directed."' 


>  ]  tJerd'iDetalMialTM,  m.  »4:S  )Ja]rtl'*D"l>l*%lSS.1SS,  IBC,  ISS,  ISO,  IM. 

■  TS*  Mini*  tlunttlit  in  i<x[mm<l  oilh  tlill  ffion  fwvo  tii  tht  AncricaD  pwpfalet, 
enilDnl  Thtnifi^U  uimi  tha  rolitioU  Situatk-n  of  Anmin  (WoieMUt,  ITU).  DL 

*  TW  Fodenlbt,  No.  aS.  Ur.  Anm,  b  •  debtta  in  CongiMi,  in  178^  on  hdmuI- 
ing  llw  GoMthutMii  in  tfgtiA  to  rtpraattatloB,  obwrred,  "Bj  (nlu^ng  Uia  npn- 
■cnlBtiM,  wa  tMMn  tbt  cliUK*  of  NUctlnil  nxa  «f  Um  groatett  iriidiow  aad  iWHttw; 
litounr  amtl\  Hurkvt  omt  b«  tonJuctrd  bjr  (ntrtjn* ;  but  In  UigD  <liatricb  oothiag  bat 
nal  di|ultj  ar  cbuMUr  na  mciu«  u  tlMlioB."    S  Uaji't  D«bkla^  ISL    Unfmtu- 


490 


OOKSTTTCnOS   OF  IHB  tIKnXD  STATES.  [BOOK 


$  675w  As  a  fit  c<meluai<m  of  this  p*rt  of  the  subject  it  ms;  be 
remu-ked  that  Conpvaa,  at  its  RrHt  cesaian  in  1789,  in  pana- 
aiice  of  a  d<^ire  expressed  by  sereral  of  the  State  conventioos  in 
favor  of  fuKher  declaratot?  and  restrictive  ameadtncnts  to  the 
Conatitalioii,  propnecd  twelve  additional  articles.  The  first  iraB 
on  the  verj  aohject  now  under  consideratioa,  and  wtu  expreesed 
in  the  following  terms:  "After  the  first  eiiumeraliou.  required 
br  the  first  article  of  the  Coii&tttiitiuii,  thcrv  shall  be  one  repre- 
sentative for  every  thirty  thousand,  until  the  number  BbmU'| 
amount  to  one  hundred;  after  which  the  proportion  shatl  be  bo 
regulated  by  Congress  that  there  shall  not  be  less  thao  ouo  hun- 
dred r^resentativea,  nor  legs  than  one  for  every  forty  tbooaand 
persons,  until  the  number  of  represeutat ivos  shall  amount  to  twoj 
hundred;  after  which,  the  proportion  shall  be  bo  regulated  by. 
CoDgreBS  tliat  there  ahall  not  be  less  than  two  hundred  represen- 
tatives, nor  more  than  one  representative  for  every  lifty  thou*, 
sand."'  This  amendment  was  never  ratified  by  a  competent 
number  of  the  States  to  be  incorpoisted  into  the  Canstitution.* 
It  was  probably  thou^t  that  the  whole  aubject  was  safe  where  it 
w«8  alr^^dy  lodged ;  and  that  Congresa  ou{^t  to  be  left  free  to 
exercise  a  sound  discretion,  aceording  to  the  future  exigencies  of 
the  nation,  either  to  increase  or  diminish  the  number  of  repre* 
sentutivcs. 

§  676.  There  yet  remain  two  practical  questions  of  no  incoo- 
sidvruble  Importance,  connected  with  the  claasc  of  the  ConstitD- 
tirm  now  under  consideration.  One  is,  what  are  to  be  deemed 
direct  taxes  within  the  meaning  of  the  clause.  The  other  Is,  in 
what  manner  th^  apportionment  of  representatives  Is  to  ho  madeh- 
Tbc  first  will  naturally  come  under  review  in  examining  th«- 
powers  of  Congrrss  and  the  constitutional  limitations  upon  those 
powera;  and  may,  therefore,  for  the  present  be  passed  over.  The 
otiier  was  a  subject  (4  much  discussion  at  the  time  when  the  fii 
apportionment  was  before  Congress,  after  the  first  eensoB 
taken,  and  has  been  recently  revived  with  new  and  inc 
interest  and  ability.  It  deserves,  tberefon^  a  rcrj-  deliberate^ 
examination. 

MUlj,  tbr  npniraot  of  IW  CaUed  StslM  W  Mt  jMtifiod  tkt  UW  t&st  tngt  S»- 
tokU  win  always  chosaa  m*u  of  Um  gnMMt  >lida«,  ability  ud  ml  d^ntf. 

t  jMnwl  td  CaanaUoM,  A«.  8«i|ip.  Ut  to  441. 

*Tbrd«bau>  uiC«agnMMiiU*MMSda«l«iU  be  fouad  ia  S  Lbjd'a  DA 
lS3tol»l:  111.  UO. 


CB.  IX.] 


BODSE  OP  BentESENTATtTES. 


491 


I 


» 


S  077.  The  language  of  the  Constitution  is,  timt  "  representa- 
tives and  direct  taxes  shall  be  ap|iortioued  nmong  tJie  several 
States,  Ac,  accenting  to  their  renpective  auml)ers;"  and  at  tlie 
first  view  it  vould  not  seem  to  involve  the  slightest  dtfhcultj.  A 
moment's  retlectinn  will  dUsJpate  the  illusion,  and  teach  us  that 
there  is  a  dtlKculty  intrinsic  in  thevcrf  nature  of  the  subject. 
In  ref!ard  to  direct  taxes,  the  natural  course  would  be  to  assume 
a  psrticular  sum  to  be  raised,  as  three  millions  of  dollars,  and  to 
apportion  it  aiuonK  the  States  according  to  their  relative  nuub 
bi-rs.  But  even  here  there  will  always  be  a  very  amall  fractional 
amount  incapable  of  exact  distribution,  since  the  numbers  in 
each  .State  will  QG\-cr  exactly  coincide  with  any  common  divisor, 
or  (pvc  an  exact  aliijuut  part  for  each  8tato  without  any  remain- 
der. But,  as  the  amouut  may  be  carried  thruuf^h  a  long  scries  of 
descending  money  fractious,  it  may  he  ultimately  reduced  to  the 
Bnullest  fraction  of  any  existing  or  even  ima^inar}-  coin. 

§  078.  But  the  difTiculty  is  for  otherwioe  in  regard  to  repro- 
scntatires.  Here  there  can  he  no  suhdivinion  of  the  nnit;  eaeb 
State  innst  l>e  entitled  to  an  entire  rcpreacntative,  and  a  fraction 
of  a  representative  is  incapable  of  ap{)ort)onment  Vet  it  will 
be  perceived  at  cmce,  that  it  is  scarcely  possible,  and  ecrtaiuly 
is  wholly  improbable,  that  the  rctativB  numbers  in  each  State 
should  bear  such  an  exact  proportion  to  the  af^rregatc  that  there 
should  exist  a  common  divisor  for  all,  which  should  lea^'e  no 
fraction  in  any  State.  Such  a  case  never  yet  has  existed,  and  in 
alt  human  probability  it  never  will.  Every  common  divisor, 
hitherto  applied,  has  left  a  fraction,  greater  or  smaller,  in  every 
State;'  and  what  has  been  in  the  past  must  continue  to  be  for 
the  future.  AsHiimo  the  wliole  population  to  be  three,  or  six,  or 
nine,  or  twelve  millions,  or  any  other  numl>er;  if  you  follow 
the  injunctions  of  the  Constitution,  and  attempt  tu  apportion 
the  representatives  accoixiing  to  the  numbers  in  each  ii^tute,  it 
will  be  fmind  to  \in  altsolutely  irapoasiblo.  Tliu  theory,  however 
true,  1>econies  practically  false  in  its  application.  Each  State 
may  have  atisigned  a  relative  proportion  of  representatives  up  to 
a  pven  number,  the  whole  beint;  divisible  by  some  common  di- 
visor; but  the  fraction  of  population  belonginiB:  to  each  beyond 
that  point  is  left  unprovided  for.  So  that  the  apportionment  is, 
at  In-st,  only  an  approximation  to  the  rule  laid  down  by  the  C<m- 
1  8n  B  Manluari  Ufc  «f  WmUdsIob,  di.  ft,  p.  81>. 


4»2 


coNsrmrnos  op  thb  unttko  btates.         [book  in; 


sUtotioD,  and  Dot  a  strict  compliance  vith  the  rule.  Tbe  trac- 
tion in  one  State  may  be  ten  times  aa  great  as  that  in  another; 
and  80  may  differ  in  each  Ht&te  in  anj  aasigusbte  mathumatical 
proportion.  What,  t3»en,  i«  to  be  done?  lathe  Constitution  to 
be  wholly  disregarded  on  thi»  point  ?  Or  is  it  to  b«  followed  out 
in  its  true  spirit,  tJiongfa  unavoidably  differing  from  the  letter, 
by  the  nearest  approximation  to  it?  If  an  additional  rcprcacQ> 
tativc  can  be  assigned  to  one  State  beyond  ita  relative  proportiuit' 
to  the  whole  population,  it  is  equally  true  that  it  can  be  asaiimi'd 
to  oil  that  are  in  a  aimikr  priMlitramcnt.  If  a  fruction  admita 
representation  in  any  case,  wbat  prohibits  tbt-  upplicatiun  of 
rale  to  all  fractdons?  The  only  constitntional  limitution 
to  be  that  no  State  shall  hare  more  than  oni-  n-pt\-M!ntative  for 
every  thirty  tbouiumd  persona.  Subject  to  tiiis,  tiic  truest  rule 
seems  to  be,  that  the  apportiotuncnt  oiijifat  to  be  the  Dearest  pra^ 
tical  approximation  to  the  terms  of  the  Constitution;  and  the 
mle  ought  to  be  such  that  it  shall  always  work  the  same  way  in 
regard  to  all  the  States,  and  be  as  little  open  to  cavil  or  coutro* 
Tersy  or  abuse  as  possible. 

§  679.  But  it  may  be  asked,  what  an^  the  first  atepe  to  be 
taken  in  order  to  arrive  at  a  constitntional  apportionment? 
Plainly,  by  taking  the  oggrt^te  of  population  in  all  tbe  States 
(according  to  Uie  constitutional  rule),  and  tJicn  ascertaining  the 
relntiTO  proportion  of  the  population  of  each  State  to  the  papii*-^ 
lation  of  the  whole,  lliis  is  nccceaarily  so  in  regard  to  direct 
taxes ; '  and  there  is  no  reason  to  say  that  it  can  or  ought  to  be 
otherwise  in  regard  to  representatives;  for  that  would  be  to  con- 
travene the  very  injunctions  of  the  Constitution  which  require 
tbe  like  rule  of  apportionment  in  each  case.  In  the  one,  the  a^K  , 
portionment  may  be  run  down  below  unity ;  In  the  other,  it  cao-  fl 

■  "  Br  till)  CoaititotiDa,'  mjt  itt.  Oiirf  Jnitk*  XuikaD,  to  dathrrlnx  tlin  ofdaloB 
of  thccfKut.  "dinxt  texttlaa,  Ja  to  >;»plk«tloa  teStMw;  thaU  ba  tppnrttoiipJ  toniua- 
ben.  tbpraMiiulioa  it  Mt  muh  tk»  faiadattoB  «f  UcaUna.  U,  midar  Um  ennnwi*- 
tka  of  B  rtfUotnUtlT*  tat  vftrr  Uur^  tboiuul  mvIk  «»  St«t«  bad  bcM  Itiiwd  u 
oanuln  C9,om  wd  methn  60,000  th*  fint  voald  Imtd  bcw  catjikd  t»  oaij  oh  Rprr- 
HDlativv,  wiJ  Uie  hat  to  two.  limr  tmxn,  homvor,  wouU  doI  bar*  bon  m  em*  to 
two,  ImtMfitty-tunelOHXt):.''  Leajcboroafh  «.  BUk*,5  Wbnion'a  R.S17,  890.  Tbit 
i*  ptHtdtf  eomct,  bocauM  UMConMitntioa  {mhibib  mora  tliui  our  raprannUtirB  for 
cMtySO^DOa.  RsttfoM  State  fiontun  104^004  (ouk  and  anoUua  800,000.  UierabM 
lagic;  wUcb,  ooMbtontljr  wiik  oMMiiDa.aeMe  ot  Jaatkc,  etnU,  n|iso  anjr  oonititadntHl  j 
■p(«cticniaiEat.  inigB  Uu««  wpumtatlw  lo  an*  aad  mvm  t»  iIm  vtWr,  uaj  mm  ibaft  j 
it  oonU  of  a  direct  lax  tba  psfottioik  of  tbnc  lo  «m  aad  atton  to  Uw  othir. 


CS.  IX.] 


HOUSE  OP  BSPRESBNTATITiS. 


498 


not     Bnt  this  does  oot  change  the  nature  of  the  nilc,  but  ouljr 
the  extent  of  ita  application. 

$  600.  1q  17U)  a  bill  was  introduced  ioto  tbc  Hoiuc  of  Rup- 
reaentativee,  giving  one  representative  for  every  tliirty  thousand, 
and  leaving  the  fractions  uorepreaentcd ;  thus  producing  an  iu- 
equality  which  waa  greatly  complained  of.  It  paaaed  the  House, 
and  was  amended  in  the  Senate  by  allowing  an  additional  rcpte- 
Bcntative  to  tlie  States  having  the  largest  fractions.  The  Bonw 
finally  concurred  in  the  amendment,  after  a  warm  debate.  The 
hialorv  of  these  proceedings  \»  siunmarily  stated  by  the  biogra- 
pher of  Washington  as  follows:  "Constniing,"  Bays  he,  "tl>e 
Constitution  to  authorize  a  process  by  which  the  whole  number 
of  reprenentatives  should  be  ascertained  on  the  whole  jwpulatioo 
of  the  United  States,  and  afterwards  apportioned  among  the  sev- 
eral States  according  to  their  respective  numbers,  the  Senate 
applied  the  number  thirty  thousand,  as  a  divisor,  to  the  total 
population,  and  taking  the  quotient.,  which  was  one  hundred  and 
twenty,  as  the  number  of  reprcaentatives  given  by  the  ratio  which 
had  been  adopted  in  the  House,  where  the  bill  originated,  they 
apportioned  that  number  among  (be  several  States  by  that  ratio, 
until  as  many  representatives  as  it  would  give  were  allotted  to 
each.  Tlie  residuary  members  were  then  distributed  among  the 
States  having  the  highest  fractions.  Without  professing  the 
principle  on  which  this  apportionment  was  made,  the  amendment 
of  the  Senate  merely  allotted  to  the  States  reapectirely  the  num- 
ber, of  menil>crR  which  the  proc«ss  just  mentioned  would  give.' 
Tlie  result  was  a  more  equitable  apportionment  of  representa- 
tives to  population,  and  a  still  more  exact  accordance  than  was 
found  in  the  original  bill  with  the  prcvoiling  sentiment  which, 
both  within  doors  and  without,  seemed  to  require  that  the  popu- 
lar branch  of  the  legislature  should  consist  of  as  many  members 
as  the  fundamental  laws  of  the  government  would  admit.  If  the 
rule  of  construing  that  instrument  was  correct,  the  amendmeDt 
removed  objections  which  wore  certainly  well  foimded,  and  was 
not  easily  assailable  by  tbc  advocates  of  a  numerous  representa- 


■  Th«  woti*  of  Um  bin  nwn^  "  TKtt  fram  mi  i/tw  tlu  tUnl  iaj  of  HMtb,  ITtt, 
tbc  Boius  of  lUptMMMivM  •bill  UconipoMd«f«M  handled  ndtVMiir^tvMi  m«m- 
%«n,  ekcttd  nthin  Uw  tmnl  OMm  ai>a)r<liag  to  tha  foUowiaf  kpportieaiMat,  Uwt  U 
to  Mjr,  witkra  tbe  Steta  of  N'aw-  tlktiifahin  An,  witbin  tb*  euia  tt  UmmOnrnm  4z- 
t««s,"  Ac,  mnmtnttiig  411  the  SuMi 


4M 


CONSTITUTION  OP  THE  ITNiniD  STATES.  [BOOK  nt. 


tire  bodj.  But  the  mle  wu  novel,  and  overturned  opioioiu 
which  hud  been  ^ncrully  assumed  wid  were  supposed  to  be 
settled.  In  one  brancli  of  the  legisUture  it  bad  been  alreftdy 
rejected,  and  in  the  other  the  majority  in  its  favor  was  ojilf 


one. 


"I 


§  681.  The  debate  in  the  two  house*,  however,  vraa  purely 
political,  and  the  division  of  the  votrs  parelj-  geoirraphical ; 
Southern  SUitcs  votiqg  against  it,  and  the  Northern  iu  its  favor.' 
TIio  President  returned  the  bill  with  two  objectiona :  "  1.  That 
the  Constitution  has  prescribed  that  representatives  ahaU  be  ap- 
portioned among  the  several  States  according  to  their  respective 
nunthera;  and  there  is  no  proporticm  or  divisor  which,  applied 
to  the  respective  numbera  of  the  States,  will  yield  the  number  anij 
allotment  of  repn'sentativcs  proposed  by  the  bill  2.  The  Ct 
stitution  hag  also  provided  that  the  number  of  represcntadi 
shall  not  exceed  one  for  thirty  thousand,  which  restriction  is  by 
the  context,  and  by  fair  and  obvious  construction,  to  be  upplied 
to  the  several  and  respective  numbers  of  the  States,  and  the  bill 
has  allotted  to  ciRht  of  the  States  more  tlum  one  for  thirty  thuu- 
Band."^  The  bill  was  accordingly  loet^  two  thirds  of  the  House 
not  being  in  its  favor.  It  is  tmderstood  that  the  President's  cab- 
inet was  greatly  divided  on  the  question.* 

§  682.    The  svc(»)d  reason  assijirned  by  the  President  against 
the  bill  was  well  founded  in  fact,  and  entirely  conclusive.     The 
other,  to  say  the  least  of  it,  is  aa  open  to  question  as  any  ono^ 
which  can  well  be  imagined  in  a  case  of  real  difficulty  of  £00.- 
Btruction.     It  aJMumcs,   as  its  basis,   that  a  commun  ratio,  oti 
dirisor,  is  to  bo  taken  and  applied  to  each  State,  let  the  froctiona 
and  inequalities  left  be  whatever  they  may.     Xow,   this  Is  a 
plain  departure  from  the  terms  of  the  Constitution.     ]t  is  Qoti 
there  said  that  any  such  ratio  shall  be  taken.     The  language  i^ 
that  the  reprcseutativea  shall  bo  apportioned  among  the  aeverol 
States  according  to  their  respective  numbers,  that  is,  according.^ 
to  the  proportion  of  the  whole  population  of  each  State  to  tbe 
aggregate  of  all  the  States.     To  apportion  according  to  a  ratio 
ahort  of  the  whule  number  in  a  State,  is  not  an  apportionment 

1  S  Utnlttll'*  Ufa  t4  WhUmsUD,  eb.  fi,  pp.  tt).  831 

•  i  JefTnnon'*  Coimfondinie*,  4M. 

•  S  UartUla  Ufc of  WMUi^toii.  ch.  S.  ^  ttl,  note 

•  U.  ]■■  823 ;  4  J«IEn«m'*  Camqmdmei^  iaO. 


HOUSE  OP  BEPRESENTATtVES. 


im 


aecordinfr  to  tlie  respective  numlwrs  of  the  State.  If  it  ia  aaid 
that  it  is  imprnctiuablo  to  follow  tho  moaniti^  of  the  terms  lit- 
erally, tliftt  majr  bo  ndmittod;  but  it  dow  not  follow  that  they 
are  to  be  wholly  dinrogurdcd,  or  luofrua^  substituted  essentially 
different  iu  i(«  import  und  vfluct.  U  we  must  depart,  wo  must 
depart  M  little  og  pmcticablc  Wc  arc  to  act  on  the  doctrine  of 
cif  pri»,  or  come  as  nearly  a»  possible  to  tho  rule  of  the  Constitu- 
tion. If  we  are  at  liberty  to  adopt  a  rule  vuryio^  from  the  tenoB 
of  the  Constitution,  arjpjiui;  ai  inconvenienti,  then  it  is  clearly 
juett  as  open  to  otheni  to  reason  on  the  other  side  from  oi^MMlnK 
inconvenience  and  injustice. 

$  688.  This  question,  which  a  teamed  commentator  has  sap- 
posed  to  bo  now  finally  at  rest,'  has  Itecn  (na  has  been  already 
intimated)  recently  revived  and  discussed  with  great  ability. 
Instead  of  pursuing  my  ou-u  reasoning  upon  this  subject,  it  will 
be  far  more  satisfatrtory  to  (rive  to  the  reader,  in  a  note,  the  ar- 
guments on  eJich  side,  as  tliey  aro  found  eoUcctod  in  the  leading 
reports  and  documents  now  forming  a  portion  of  contemporary 
faittory.' 

§  6M.  The  nost  clause  of  tho  second  section  of  the  first  article 
is,  "  When  vacancies  happen  in  the  representation  of  any  State, 
the  executive  authority  thereof  shall  issue  writs  of  election  to 
fill  such  vacancies. " 

§  685.  Tlie  propriety  of  adopting  this  clause  docs  not  soom  to 
have  furnished  any  matter  of  discussion,  either  in  or  out  of  the 
cunventioii.^  It  was  obvious  that  the  power  oujiht  to  reside 
somewhere ;  and  must  be  exercised  cither  by  the  Slate  or  na- 
tional go\-t'mmcnt,  or  by  some  department  thereof,     llie  friends 

I  B*«rlB  oa  OnMUtBtloB,  48 :  S  kbnhiU't  Life  oT  Waiduiigton,  SSI. 

*  Uf.  JalTcnod'*  ofilnlon.  ginu  on  tli*  >fiportlonm«nt  bUl  In  1;d2,  proat*  kll  th* 
leuling  ivMHu  ^uBit  (Im  JuotrlD*  ot  tiipartionliig  tb*  r*prM«iiMiv(i*  In  in;  other 
Duuinor  than  hj  «  ntio  without  rqpj^  to  (mctioiis.     It  1)  m  rellowi :  — 

"Th* Conxtltutian b** doeknd  thtt  ' rrprtHDUtirn  Mad  lUrKt  tun ihaU  be appo^ 
tionttl  uaeaiK  tliawnnlSUtMMMrdii^lo  their  RtfiwrtiTeiiiiniber*:'  t)ut  'iWdidi- 
biT  of  reptntnUtivM  tb*l1  not  iptotd  one  bt  enry  30^000,  bat  Mch  Sut«  thall  htm^ 
at  l««it,  OM  wpw»iUtt*» ;  aad,  nalll  mch  MUMDtnttica  iImII  bo  ■•d^  tiM  Slata  «( 
Me«  llunHib*  ibUl  b«  nilitled  to  Aetm  Uwm.  UMMcliuMlti,' ««. 

"  Tl»  bill  for  KppoRMfiiiig  TtpTMoilatint  umng  tk  nveml  State*,  iritliowt  mqilaiii- 
tng  *»y  prindpli  >t  all  wbi^  in*;  Aovite  tontoimktj  wllli  tbe  Ooaititntta«  «t  fpild* 
ttttant  lippnrttBwnWBt^  myt,  thU  New  HMnpaUm  *htll  ha««  thiw  inomb«n,  UMaa- 
■hawtti  ijitttn,  *c    VtM«.lh«r«fon,tofl(Kl)>y*<P«ri»ratwhathMbMa  thspria- 

•  JooHMl  of  Ooavoitka,  tV,  »7,  US. 


496 


cosBnTtmoji  op  toe  omtted  btates.         [bimjk  lU. 


of  Stut«  powers  wuuld  natiirally  rest  ftntislicd  with  leaving  it  with 
the  State  ciecittire;  and  the  friends  of  Die  Datioiial  goremmcnt 

c!iil««t  thvbtti;  lodowhkli,  iiia][mp«rlo4tatFlk«P*don]ornpnw3ita)>b!  nmnboii 
orfacliBulr,  Knd  tliB  BDmibenaltolKd  lottma  by  tiM  bUL    Tb^KMu  Mbwt:  — 


Bfi,UI 

3 

Ncv  llanipltira 

UI.HE3 

a 

lioa.wbetliti  tried  M  b«w«M 

Haakcliuutu  . 

4*}^T 

ie 

enu  tuid  Bmall  8utM,  or  m 
MtWMD    Noitk  aoil    tloiMb, 

Bbode  UJiUiil 

etM* 

a 

ConoKticut 

fayux 

6 

jMit,    i«    Um    pwft    io- 

Nfw  Yolk    . 

3sa.9ii 

n 

naneo,*tolM»UT]«M  nnli, 
nA  couMqaMUy  couM   nol 

New  Jerse/  . 

V9M* 

e 

PtlllDtJ'lvMlia 

insMa 

14 

ba  obJtK-Ud  U>  oa  Uiat  vionitd, 
U  It  nora  obuiatd  by   iha 

I)elawa.r«     . 

iiASt 

1 

Mar.vbi>4     . 

Virftliiln  .     . 

17MI3 

9 

ai 

BMOai    nntcnbod    im    tbo 
CoDMitntltni ;  bat,  if  abtaliMa 

K*utiir.kv 

w,:« 

1 

bj  MIf  pMCMB  OM    of  tbfll^ 

North  ('orDlIiuL 

3UJ41 

II 

Ronlh  Carolina 

>oe.ts6 

T 

Oeorgia  .    .    . 

T0,»43 

3 
130 

3,636^1  a 

"Th«  Knt  member  of  thvclauaeof  1h«  CannHutko  aba**  dl*d  b*x]>t««, — tiuU 
I«]ina«nlat[v«i  tlmll  b«  a|iport!onfld  antaog  the  wnnl  SUtca  aeoaadii^  t»  Ihttr  i 
tttt  nunifn;  that  b  to  M]r,  the;  *b*U  b»  appeftJotMil  bjr  aonw  DCODBoa  nlio,  l«Tf>r»>] 
fNfKntoiiJ  ni(i»*te«quin]aitiKitl*;Mkd  U  uihedti6nitioatitfnp(irtiiiiiaaMgmtmf\ 
ttrt,  that  th«r  bur*  a  raUa  «minon  lo  oN,  er,  Ui  olliw  vot^  ■  (ommnt  rfMMr.    Kow, ; 
trill  «i11  «hin»  (hat  th«i«  ia  no  onnnum  nriir  or  diviter  irbkh,  applied  to  tbt  naaik 
of  Mcb  Slat«,  wni  (pre  to  them  th«  number  o(  rtprcaenlatirw  allHted  in  thit  bill  ]  (bl^.' 
trj-iiig  Ihc  Rvml  nlia»  of  29, 3U,  31,  33,  S3,  the  allatinciita  woald  bi  aj  faUom :  — 


w 

W 

» 

11 

9 
4 

14 
S 
7 

11 
S 

13 
1 

19 

a 
11 

6 

9 

10> 

S 

u 
to 

13 

19 
10 

lOS 

The 
Bill 

3 

le 

II 

t« 

■1 
11 

190 

VMrmoni  .    . 
Kev  Hsin|i*hlr« 
Mataavlinw'Ua 
Rhode  lalaod 
CiMnKtkiH  . 
N«ir  Tork     . 
KewJcrHj   . 
Poniuyli  aula 
Delaware  ,    . 
Maijlnnd  ■    . 
Vir^tnia    .    . 
Kentuckv .    . 
K<iKh  Carolina 
SoBll)  CafOllaa 
Otwsla    .    . 

9 

4 
16 

a 

8 

la 

6 

u 
I 
e 

31 

a 

13 
7 

s 

IS 

11 

5 
14 

ai 
ti 

Hi 

9 

4 
IS 

a 

7 

il 

s 

IS 

1 

H 
90 

9 
1) 

6 

9 

109 

Then  the  bW  ib¥I]1Mi 
tha     masiiwifaml 
nrarspc ;     becaate, 
br    ji,    teprii— itfc 
tlVee  are  ■«  *ppM> 
UoMd    a«Kin)i    the 
•c<r«nl    StatM   ac- 
toodlnK  to  tbelt  >«■ 
■peclire  nwnben. 

118 

"  It  will  be  Mill,  tbat,  thongb  for  (naxa  ther«  ina;  always  be  fooul  a  iliviaor  wMrli 
wtU  ^pertiui  then  aaeog  the  Suite  aoootdiag  to  nviubin  tmaXj,  witlioiit  IcaTing 


CU.  IX.] 


HOUBI  or  RBPSBSEKTATTVIS. 


497 


woald  ac(|Diesce  in  that  arr»ng«inpnt,  if  other  constitutional  pro- 
visions existed  sullicient  to  preserve  it«  due  execution.    The  pro- 

mj  WBWid^n  :  jtt  for  ryrcnitoHBc  them  oui  be  bo  wacb  toramoa  ntio,  or  diri«a«, 

w\uA,  afipMed  to  the  Ktvnd  mnabcn,  ivill  divide  tbem  ciactly,  witbont  a  mmlaitt 

'  fnutiDii.     I  Mxarr,  thrn,  that  (an>  mitit  ttt  diTid«il  exaalj/,  and  nj'imiifiifhiii  at 

If  M  thr  HmrfM  ralM  trill  wimit,  >n>)  th«  hactlana  mult  b*  ii^t«ct«d ;  l«M«ue  the 

I(C«nstitit11uii  wills,  ibaotiitflj,  that  t\un  baan  afptrtUmmaU «t  mniaw  raf fo ;  and  if 

Taiij  fmiioiu  reiuU  frani  tiin  opcntioii,  it  hu  ]«ft  tlivm  unproviiUtl  lot.  In  Tact,  il  ooold 

'  not  b«fotE*cet]i«t«iKbfr*ctJanav«tild  fault,  and  itmouit  totubmit  lolltDm.  It  knew 

thef  would  bt  In  favor  o(  one  part  of  the  Union  at  ode  tlnw  and  of  anollirr  part  of  It 

at  anothrr,  to  >»,  in  tfa»  rod.  (o  halaaM  occaalinial  Lnriqiialflia*,    Bui,  iu«tnid  of  tu«h  a 

tingU  coiiiriKm  mtio.  or  anifomi  dirfaor,  aa  pmcribtd  bjr  tbe  Comtitnlioo,  tlif  bin  bai 

^■pplied  two  ratitu,  it  Iraat,  to  the  diflmnt  Blatfi,  to  uit,  that  of  SO.OSfl  to  the  atvm 

bllowins  :  Ithodr  Uland.  New  Voric,  PamuDdrania,  MnryUad,  Tii^nta,  Kentatkjr, 

Dd  0*OT|ila ;  and  that  of  ST.TTO  lo  the  tight  »tfa*n ;  naniclj  Tormoot,  IXcm  Hamp- 

^'Alra,  HaaMrbaartla,  ConnMticat,  Ifcw  Senay,  DtU'wttt,  Iforth  Carolina,  au<l  South 

Carolina.     At  follom  r  — 


t 

And 

1 

Rliod*  laland .  . 

6S.<44 

& 

i 

VarmOBt 

»,&» 

1* 

3 

Ktw  \<itk  .  .  . 

.ISB.lll  5 

t 

11 

N«w  IIani|ialili«  . 

U1.R)t3 

ef 

S 

IVnM.vliHila .  . 

«S.BM> 

14 

UaMachoMttn  .  . 

4TG^>T 

1^ 

la 

Marrliuid    .  .  . 

s;e.MS 

% 

9 

Toanectkul   .  .  . 

!3»,1MI 

S; 

8 

Wty^aia.  .... 

G30.S&!! 

i- 

» 

New  ientj    .   .  . 

I7«,»M 

»^ 

• 

Kcniuck;    .  .  . 

CS.TQS 

S 

Dclawnto    .  .  ,  , 

n,iia 

f 

S 

0*0^   .... 

TO.tMJ 

12 

1 

North  Carolina.  . 

3U.&I) 

■s 

13 

■1 

Sooth  Ouoliua.  . 

£06,336 

■1 

7 

O 

a 

"  And  if  (nv  ratioa  may  be  applied,  then  fiflam  maj,  and  the  dixlilbntlon  b«ciiaw 
arbittaiy,  inatcul  of  bring  npportiontd  to  numbsrai 

"  Anothn  mcmboT  of  the  claoae  of  tfas  ConatllutloD,  which  hM  been  dted,  aa)«  *  tfaa 

nbta  of  n^irwrnilaltvfa  atiall  not  n««*d  on*  for  over;  SO.OOO,  bnt  each  Sutn  ihall 

'  tian  at  l«Mt  one  irjnawntatlva.'    Thia  laat  ^laa*  pr»raa  that  it  bad  b  a>nttBi(da> 

tion,  that  all  frwtiona,  or namtvw Mmirtkt  oMamOKMbA  nwalo  b*  aiir*|<rTwnted ;  and 

^ftpMTldoapocialljr  that,  in  the  OMeaf  a  State  wlHNa whole  BQMberihaU  be  balow  iha 

nan  mtii^  ona  rtyreatntatlTt  ihall  ha  f^Tan  to  it    Hiia  ia  the  mj^  iwrtwine  vhit« 

fit  aHowi  )*in*wii(>tion  to  any  amatler  nombfr  than  tha  conunon  ration  and  by  prarid* 

ng  apadally  for  It  tn  thiiv  ahowa  tt  wh  oDitentood  that,  wltboat  aptdal  inovUon,  the 

iomUot  WiMbw  wouU,  in  thia  otae.  be  inTolred  in  tha  gvMtal  firittdpllb 

"llMftnrt  phr«»eaf  the abandtatioa,  that  'ihennvbarafTtfrnaBniativfaabatlBot 
1 OM  ka  ovtaj  90,000^'  ta  violatBd  hy  thn  bUl.  whkh  ha*  ffivon  tn  dj[ht  Statea  a 
^mnbar  asteadinK  oM<  to  erciy  M.lMOk  to  wit,  onabrarwy  t7,7T0. 

*'  In  annwer  to  lliia,  it  U  aaid  that  thia  (dunta  nay  maan  ritbrr  tbr  thirty  tboManda 
ia  nuft  jtut*.  or  the  thirty  thoDMtnila  in  the  ttMt  IHiotj  tatA  that,  in  IIm  latter  oh^U 
a(m>  only  to  find  the  anovnt  of  the  vbolo  leimmtatiott,  which,  in  the  pment  atala 
tt  poimkllan,  I*  MM  hnadfad  and  twtaly  wiwbwa.  Soppw*  tha  ptirwa  m\^gaX  baar 
both  ■aa^^p,  whhih  will  eainMan.aMiM  ntiply  t«  It  f  Whkh  did  ih*  nnlraraal  iu>dai> 
atatiding  of  our  oamiltjr  apply  to  it  t  Which  did  the  Sanala  aad  lt«pr«atataH*«a  afply 
to  it  duriag  the  ptadanqr  of  ths  KM  bill,  and  wm  tfU  an  Mlfund  it^  or  Ota  Mond 

TOt.  I-  — 1> 


•198 


C0N8TITUTI0K   OP  THE   CKITE!)  STATES.  [BOOK  in. 


riaion,  OB  it  stands,  has  the  atrong  recommendation  of  public 
convenience,  and  facile  adaptation  to  the  particular  local  circuni- 

UU,  irhtu  an  iii^ulaua  ^-taitUiiiui  fouud  oat  tbt  doctrin*  or  bactioiu,  —  k  dodriiw  to 
diffioalt  and  inobvioui  u  to  ti«  rq'erUd  at  Gnt  aiglit  br  tJie  *enr  ponona  wW  Mftcr- 
WMxLi  btcsnie  iU  mart  jmUiui  iidrowlM )  Thi:  pbra«  ■Uails  in  Ibe  midrt  of  •  niUDba 
of  olh«n,  tn^ry  odo  of  vhicb  rclatei  to  Statoi  in  their  Mptnte  cspocit;.  WUI  not  iilaivj 
conunuu-MUW,  tb«u,  uiiiUnuad  tl,  like  th«  ml  of  il«  context,  tor«btat»SuiMliii 
•ep*nt«  cB{n«iti';i ) 

"  Bnt  if  tbo  pbraM  of  one  Tor  30,000  w  oa\j  nauit  to  pit  the  aggicgiile  of  i 
■tntnttvni,  ami  not  at  nil  la  influoncii  their  npiwrtionmBnt  among  the  IHatu,  tlwa  1 
one  hiiu<in'd  and  ftvnly  Mnf  oneo  foiiiid,  In  order  tn  ai>iMirtl««  thnn  wt  pw 
t»  [li«  fumiFr  rule,  wliiuli  doM  It  ttixivriijtg  t»  l^  nuntbtn  i/ U*  mjxdiBi  Stau*  i  ami  \ 
inaat  tiikc  the  nMrul  <i>innii»i  tfiFuor  as  tilts  rxtioof  diatributton,  tlut  is  to  ny,  llut  dii 
MT  which  Bppliud  In  cverv  SuXe,  gim  to  tbcm  rush  numUn  u,  added  tog*th«t,  i 
naumt  to  i'iO.    Tlii>  n<:uireiit  common  ratio  irill  be  [band  to  be  SS.HIilj,  and  will  dirtrib*^ 
nte  119  or  Ibe  12i)  tomnbert.  iMTimgwiIya  aingU  iMldiMjyone.     ll  « ill  be  found, 
tm,  to  plitce  94. CIS  fracUoDal  nunibersin  the  eigbl  northenimottl  Statoi.  sad  105,533  to 
the  sou  them  mort.    The  folloiring  table  shims  jl ;  — 


Vermont .  .  . 
New  Hatiipebin 
MaoNuhiiMMIa  • 
Khndn  Uluid  • 
Connerlli-nt .  . 
Now  York  .  . 
New  .loTMy  .  . 
Penn*ylTuiift   . 

TMamue  •  ■ 
Marvbiud  .  . 
Vlq^lnia  .  .  . 
KoDlucky  .  . 
Ntirtb  CaroliDii 
fkmth  Carolina 
Oootgla    .    .    . 


141,81-1 
479,337 
68,444 
935,941 
353,915 
179,5511 
433,081) 


3,G36,3ri 


Keillor 


a 

4 
10 
t 
8 
13 

e 

IS 


55.538 

1 

a6.«80 

3TS.5I3 

9 

18,:91 

630,558 

31 

t4.M0 

6S,IU 

.> 

IOt9«S 

353.511 

11 

Tjas 

S06.S36 

7 

4.M0 

T0,&43 

1 

13,137 

119 


FnicUuu. 


a:.8i6 

2M9I 

ia,3'w 

10,728 

3,OT7 

6,019 

0,40M 

10 


309,330 


M,«te 


toe.Mi 


3oi.»a 


"  Whatever  nay  ban  bean  Uw  istalion,  tl«e  effect  of  nyecting  Ike  BfM»t  di* 
(vbick  leavN  bnt  one  twMuaiy  inwnbw),  and  wtoptJMf;  a  diiUnl  one  {aliieh  Imt 
ei){bl),  li  merely  to  Uko  n  member  from  Nev  York  and  Pennaylvaiiia  t»A,  and  glf« 
tbem  to  Vemient  aiul  Mew  llsmf^irr.  But  It  will  be  mU,  'Th,W  \»  Blvtnit  tnoee  tbaa 
on*  for  80,000.'  True ;  but  hae  it  not  been  Ju«t  aaid,  thai  tbe  om  fur  30.000  (i  { 
aerlbad  oalr  to  fli  llm  »ggr«gtU  nambw,  and  Ibat  we  aro  mt  to  nind  It  when  we  i 
to  aypittiion  tbem  ninoog  the  Slate*  -.  that  for  tkia  we  aiurt  recvr  tn  tbr  former  raltv 
which  d»trtbiili-«  lliem  aeoording  to  the  ncmbtn  in  each  State  f  Bcaid«,  doa  Bot  tha^ 
Ull  itatir  ■[^rtiott  annng  aeren  oT  the  States  by  the  ratio  «t  U7,770,  whldi  b  i 
nwre  than  oat  for  SO,  000 1 

"  W\»m  a  ptttwa  b  mtBeftlblo  of  two  laiaidagi,  «a  oqgbl  oeHaMy  to  adopt 


CH.  IX.] 


BOL'SB  OP  REPRESENT  ATI  rB8. 


499 


BtancM  of  each  State  Any  general  rcgalatioD  would  haro 
worked  with  ttome  intqualitjc, 

wbieh  vill  tiring  upoa  ni  tlie  fnrt«t  iiic<uiniiijena«i^  htt  vt  «t^  (hen  naulUag  bvm 
both  coniuuclioni. 

"Ftuni  that  inyiof  loMch  Stats  MUMnbcr  far  *ver]rS<\000  is  tbatSuia^iMulu  tht 
■iu^l«  ill  cnii  villi  ill  II  t^«,  ibU  thtra  kmjf  hr  liuKr  TnL'tlont  nnrrfrtitacntad.  But  it  bdi(« 
mere  hnrinl  od  which  SuIm  this  *iU  (lU,  huanl  will  (ic[n>llM  It  in  Ui»  long  nit. 

"From  the  other  imilti  «uetlir  th«  nufie  iiicoDireniciKa.  A  thvonad  owwiHf  b« 
imo([miHl  la  proru  it.  Take  one ;  mppoM  M^t  of  the  StatM  b«d  4&,000  InhabitKita 
cnrh,  mid  tli»  blhur  wTRn  4t,B9t)  each,  thit  ii  to  af,  «ach  on*  Uh  dun  mfb  of  tb« 
othnr*,  thi'  itfui;r>^t<i  wvulil  W  074,9^8,  anil  lh«  iiumbcr  of  n-pivnitiitiitiTM,  tt  nn«  ttt 
80,000  of  Ihv  a^n-gitv.  Koultl  ba  S3.  Then,  tttrr  giriu^  uiiv  inembrr  to  each  9lat<^ 
dUttiliute  the  lorcu  rcBduaiy  tntmbrn  among  the  atrni  Wgheit  fmction* ;  and  though 
the  dllFcKiuTa  of  populKlion  Iw  oiil)' mi  noil,  (ho  irjimvlitittion  woitM  bethodonU*. 
Hvn  •  (lagl*  Inhtbiluit  lb*  moni  would  cmiol  m  SO,<iOO.  N'ur  I*  thl*  caw  inianinablo 
onif  i  It  >il]  twcmblf  th«  imI  mm,  ohensTn-  thv  rrurtiona  kspixiii  lo  W  (irtltf  r>)u>l 
thionsh  th«  vboie  Sutfs.  The  munbon  «f  oui  ceiuua  hap{iBn,  by  acciiLtnl,  to  giro 
tho  fhKtMDi  all  r«iy  MnaJl  or  reiy  gnat,  n  u  to  [imdiice  ibe  strtmneit  «ub  of  is* 
ciiDaltly  that  could  posiblj'  ban  oecniml,  and  which  nuf  ncmr  occur  aKoin.  Tha 
probaUlity  la,  that  the  traction*  will  gvnvratlr  d«ac«nd  gradualij  from  S»,iHt»  to  1. 
Tha  Uiuoiivfd1«ui.'v,  lb<-n,  of  lar^  nnrepmratal  fractioui  alttndt  both  o»uftructiont ; 
and,  while  tha  moat  otnrwa  coiutniethin  it  liable  to  no  otbor,  that  of  the  bill  iu«u)i 
num  J  and  grievous  onea. 


FneUau. 


■at 
Sd 

3d 
41b 
Ub 
«h 
:ih 
Mh 
Ml 
loth 
llih 
IJih 
isih 
lUh 
IMh 


4&.000 

a 

45,000 

S 

-tfi.OOO 

9 

45,000 

3 

45.000 

a 

4bfloa 

3 

45.000 

a 

45.000 

a 

44.!I<)'P 

44.'JU<) 

44,9119 

44.999 

44.999 

44.999 

44,99« 

IS.000 
lt.ODO 
15.000 
I»,OUO 
l».000 
1^000 
liJXXt 

iijm 
I4;»99 
14,tM 

I4.t» 
I4.tt» 
U.«t9 

u,*n 


ST4,»3 


"1,  Ujrau  ptrtnlt  the  Urge  traction  inoDeSuteloehadaoarepcaeaitatiToforonoel 
die  mall  ftacUana  in  anothar  Slato,  yon  take  frotn  th*  latter  iu  ti*ctlna,  wUeli  ««ull- 
tatn  real  iHpRMUtatko,  and  luhililiita  a  Tlrtual  rtprraentatiMi  of  lh«  diatna«hi«*d 
ftacllonai  end  (be  tBnd«w]r  of  lhedattrJiM«r  rlrtsal  rejirfaenlaliaii  baa  Wa  too  wtll 
dieaiawd  aad  •p^ndatml  bj  rwaowing  and  walrtanoe,  en  a  bnner  great  oetaritai,  1» 
und  il«TDlaF<ntfit  now. 

"  L    Hha  bill  doea  not  mj  ibct  It  fcaa  glna  tiM  teaiduair  ttjittaeutaUvga  to  ft« 


500 


ooNsnTonoN  op  the  untted  states.         [boob  nf. 


$  686.   The  next  clau»e  is,  that  "  the  Home  nf  RepreMrtttatii 
shall  choose  their  speaker  and  other  officer^  and  shaJI  have  the 
sole  pover  of  impcacbment." 

;rw(M/'atfiMu;Uiaii^inl«ct,  hliMdone  •«.   ItwtautolureaToidedertKbll 
Uwi  JBto  ■  ni%  l«a  In  nil^  bM  niit  on  uutbw  mniriiiii     Pcrba|«  It  nmy 
feiiad  the  MXl  ti*«  moM  ecnvMiMt  to  dkltfbuU  tbam  aattug  1^  KitaUtr  Staltt; 
■noUMT  time  amnig  ti*  larftr  Simla ;  M  oUiar  liaw  Moonling  l»  »ay  otlMr  crakbt' 
whiil  JngMuitgr  atij  ui*titU  uid  the  oonibiuilian  ef  th*  day  gin  MmagUi  ta  cuT]r ;  or 
thtj  mtj  do  It  ftrWttmrily,  fajr  open  baujpin  uid  cabaL     In  iliart,  thii  ccuutfuction  u- 
|fada(*t  Into  CiMf***  ■  Kmnbia  or  >  rcadiw  tar  tha  aatplna  tnamlMn.    It  fOMMtM 
■mU  of  liuMv  bat  blood,  atid  nuy  at  miiw  tiini^  wtirai  llio  fiMtloaa  m  Ug^  txlMd. ' 
•  diwpwMiewt  tetiewi  the  two  bouae*.  (o  tbe  pcrpriiul  Ion  of  tb«  Iking,  w  happciaj 
■o>  tn  PcmurlTBiik  MKaibly ;  «birBM  tb*  otliw  Mtutfwctka  ndooM  tbe  . 
KMiMitt  tlvnj-R  U  m  aridiiMtical  •ftnlkli,  aboM  wldab  00  two  MM  <itt  firmlMrj 
diStr. 

"S.   It  ItaTta  in  fall  fore*  tb«  Tjolatkiit  of  tb«  premyt  whidi  d«dam  that  i  ipniwul^. 
ttwa  Aalt  \tt  afjnrtimtd  — oog  tha  Sttim  aecoiding  to  their  aumtwi^  tkit  bibyi 
oauiMon  ratio. 

"Vfewiiigtbi»taiaithtra»aiwtiiWwi/a«OwM«tti»«wnraaglTtoK«nfaowi^ 
flipMi'uoa  to  it*  tMnU,  it  it  ■  owewlieraD  the  PmUMrtvo^l  WlM«nM**U(iMStlH«t 
I  thinl:  it  u. 

"1.  Tha  non-mar  «IU*K^th«bi«lma]nad)r  to  «aKlt*abclieftbat  no  Pfwldaat, 
will  evtr  vpntnr*  to  um  It  i  and,  oonaaqtimtly,  bu  b«ffott«n  a  daaln  to  ralna  up  bantasj 
In  tlie  Sulc  legblatVTtB  apiiut  Oongnoa  tbmwn^  off  the  oontrol  of  tbe  Cwutitutioa.  | 

"1.   It  out  never  bamoiliDCiMpiaaiingtjrcolhepntilletban  i&thepNitactloBoft 
Coiwtltntlon. 

"8.  Ho  f nTirfons  of  th«  Connitvlfm  m m  fUBdsiB«iittlI)r  dtngntna  u  tbe  tridn 
fjiytdaa  tbeiiom  minibrn,npportioiimcnt,Bnd  other  dieiunataMcarEapoeting  tbam- 
aclm,  and  affrcting  their  legal  •jimlificotioni  to  l«gi*tat«  far  tha  CTnka, 

"  t.  Thr  niajorillrs  by  shich  this  hill  ha*  1m«d  carriad  (to  w(t,  of  om  tn  tha  ScMtl  \ 
and  tvo  id  ttii'  KmiM  of  R«pi*«piitiit{r««}  ihow  huw  dlTiiM  tha  ofinlona  mre  them 

"i.  Tli«  whole  of  t<oth  hoQtF*  admit  tbi?  Cunslttation  will  Ixsi  tb»  otha  axpnUon ; 
wbtMU  the  tniiioHtia  in  both  iray  it  will  bmr  that  of  tha  bill. 

"6.   Ha  application  of  any  one  ratio  Uintetiii^lile  to  tlirpMiile,  and  vill,  tbvefat^ 
ba  ip[i*OT(d;  vhtraaa  thoManplai  oparatioonaof  ibiaUU  will  never  beoMnp«ht*df4J 
by  tliem  :  and,  thMgb  they  aiy  aoqamoe,  thajrewinot  tpprare  wtiat  Anjin  aoll 
Bn-tmitaiid." 

Mr.  Webator'a  report  on  Ihn  aama  (oi^t.  in  the  Senate  In  April.  1832,  proatctaUw 
Wciing  arxamontu  on  the  other  ride. 

"ThUblU.  Ukaall  lam  on  the  aaoM  anhjeot,  miart  be  Rie«idad  aa  of  m  inlereatiBC^ 
an-1  di'hcala  natnra.    Itmpceta  tbe  dMribitioaof  poUtleal  pomr  amrngtheSlatMaCl 
the  Utiioa.    I(  b  todetavmln*  thensmbwaf  mifiaavhkfe,  fbr  Ian  jraan  t«  eem^  mA  ( 
SUM  is  to  poocai  in  the  pajinkr  branch  of  the  kfiahMraL    In  tba  opinion  of  thaooa*] 
inittae,  there  c«a  be  few  or  *o  •)ua*tloB>  vhieh  it  ia  mon  il«Brabl«  aboxld  b«  MttM  m  i 
jaM,  fair,  and  aalkTactoiy  ptinciplM  than  Ihii ;  and.  availing  tho—ilvta  of  tlie  btaeftt  j 
of  Ihediaeuaalan  wUch  IW  bfll  haa  already  mdngoDe  in  the  Sanatfttbey  have  i^<«nl« 
it  a  reaeaed  and  aaxioai  twuridenitioa.    Tbr  nanh  >*,  that,  in  tlttif  ofjnion,  the  Ull 
Mighl  to  he  amended.     Steing  the  dJAenltiM  whkh  helonn  to  tha  wboln  aahjact.  ihaf 
an  tally  coaviacad  that  tbe  Ull  baa  baon  framnl  and  paaiaad  in  tba  otbar  hooM^  wttb 


CB.  tX.] 


nODSE  OP  REPBESENTAnVES. 


601 


§  687.  Eftcb  of  these  privilogM  is  of  Rreat  pntctical  value 
uid  iinportai]C&  lu  Uruut  Brituiii  tliu  llouiu.'  vf  Commoa»  elect 
their  own  spvoker;  but  he  uiiut  be  appruvod  by  tbv  king.*     Thia 

thciiocaNBtJMratoovtrcomA  tlMtNdifficulti**,  knd  U>rnaoI  m  law  which  nhoiUd  ilow 
much  Ju»Ui^  M  iMMiUc  to  mU  Hi*  SuU*.  But  th*  (uumiiltw  arc  uouitnuutJ  to  lajr. 
iku  ihi*  »l>J«rt  *p|>r4(v  la  tli*ni  iiol  to  haT«  bota  atUiaod.  Tl»  unequal  ojitniliieo  el 
til*  bill  oa  wnw  of  the  Dtalu,  ihould  it  beooma  a  law,  k«ii»  to  th«  commltlM  mou 
manifan:  and  thcjrcuinot  bat  ciproM  adoabt.  whotherltt  ftctuftlapiwrtiniiCD'utortliB 
npraMotaitiTo  |w«cr  uuang  tlio  Mvonl  StMm  can  b«  tmwiil«nd  m  i-oufaniuUc  to  tbe 
•Iririt  of  the  C«iutilutiuii.  Tliu  bill  pruvkiM  that,  bom  and  after  th*  Sd  of  Uaiek, 
1831,  the  HouH  of  ICcpTMEUtatii-a  Anil  U  compMcd  of  ncmban^  olectol  afnttblr  t* 
■  lalia  d  onn  nprowiitatiTc  for  crtr;  foitj-tcvra  tbonaand  and  mtau  huidred  pcmona 
in  cash  Suta,  coniput«l  acsanling  to  tbt  tula  pn*crib«d  bj  tb»  Omrtitntioa.  Tlw 
aiMUioa  of  Uw  Mwa  bundnd  %»  lb«  Un\j-«trta  tbooMiid.  in  the  MupcMitioii  a[  tLia 
ntio,  produca  nocOMtwluUTor  in  ngud  U  the  oMiHitBtiun  of  thr.  Elouat.  It  lulllin 
ail>l>  to,  »ui  take*  btm,  the  Duiutnr  «f  nenben  uugned  to  any  Slate.  lU  mlj  eStct 
u  a  Rdoftion  of  the  appaimt  anHmnt  of  t^  frnctioni,  u  the;  an  nraallj  <all«4,  cc 
naUuarr  mcmbsta,  after  the  ajiplirolkiii  of  tho  ratio.  For  all  ath«r  pari*D«M^  tbe  nault 
h  pwcbUj  tba  aama  ■»  il  the  ratio  had  Wa  47,000. 

"  A*  It  tMHU  fpnaralljr  admitted  tbtt  iiiequaliiiea  ilo  *xi>t  in  thU  bill,  and  that  ii|ja. 
rioiu  cMueqiwnoM  will  arin  tnim  it*  opcntion  which  it  would  W  dciirablc  lo  tvrrt,  if 
any  propct  meuit  of  anrttng  thcu  without  pivducing  olhcn  cqiutly  lojurioua  could 
be  foaad,  ibe  ocaniniUac  do  not  tiiiiik  It  neceuory  to  go  into  a  Tall  and  fanicular  uate- 
iDtnt  of  ihde  eonteijneiioea.  They  will  rontrnt  tlioiimclvra  witli  prwontkcig  a  fiw  fx- 
aniplta  only  of  ibtae  naolt*,  and  cuch  an  Uiry  hud  it  luoit  dilEculL  U>  rccoccile  with 
jaatiiM  and  the  ipirit  of  the  Otnrtitutioii. 

"  In  nbibiting  theae  tatnfitm,  the  commitlae  mimt  naenMrtiy  ipaak  of  partlcolar 
Blatra;  but  it  u  liaidly  nwotiiHry  loiay,  thai  tb«y  aiiMlt  of  llieuiaiKzaM^Mouly,  and 
with  the  moit  perfoct  reiiwct,  uot  only  for  tlie  Slatn  IhoaiMlvR^  but  for  all  tboM  wh» 
rrpiriH'til  thrni  hurt. 

"  Alllioii^h  th«  bill  doM  not  conunenca  by  filing  the  whole  naDtbtr  of  the  propoatd 
Iloiua  of  BcpreHnUticpx,  yol  the  pracaaa  adoptai  by  it  briny  ont  tba  nambtir  «f  two 
hundred  mid  forty  nicnibcn.  Of  th«*«  two  hundred  and  forty  meailata,  forty  an 
aaaifcnnl  ta  th»  Stale  of  New  York,  tlut  ii  to  my,  pnwiacly  ono-HXtli  fait  of  the  wboLtk 
Thii  aaagmmnt  would  mviii  to  irquira  UmC  Kew  Tork  abould  CMitaln  onc-iUtli  jkrt 
tin  wbob  popnUtioD  of  Iho  l'iill«<l  SlalM,  and  would  bo  bound  lo  pay  ooe-uxth  part 
of  all  bet  ditrct  taxea.  Vet  avitbtr  of  thoM  U  tbv  cava.  The  whota  rrprotnlallTa 
population  of  the  I'oitrd  SutsU  ll.»»,005i  tbatof  Ktw  York  it  l.MA,<»,  which  i« 
laaa  than  onv  *Uth  of  tho  whole  by  nnuly  lO.OOO.  Of  a  direct  (ax  of  two  fcoadnd  and 
forty  tfaouaand  dolkn,  K*w  York  woaU  pay  on]y9U,M0.  B«t  il^  iutaad  cfosnpar. 
ing  dw  anmbeis  awipinrt  to  New  Ynik  wilb  tha  whota  nnabcn  of  Iho  houn,  we  oom- 
pan  bet  with  olhcf  Stalca,  ttw  inequality  is  »tlU  bmc*  aTtdairt  and  atriUng, 

"  To  tba  Mato  of  ytmont  tU*  bill  aaagna  Sr«  mombBta.  It  gital,  tlunbt*.  algbt 
tjmf*  ea  many  lapnamtatiiM  t«  New  York  aa  to  Vrnnoat  i  but  the  popUatka  of  N*w 
York  U  not  »iual  to  ilgibi  liinea  tba  po|mktion  of  V«(inont  by  toon  than  thm  ban* 
dred  ilton«an<L  YtrmMit  hat  At*  iMBban  only  for  S80,U7  pMaona.  If  the  nme  pw 
potlton  werato  baapplinl  to  New  York,  it  woald  radsM  tlia  unmbtr  of  brr  mMnboia 
fnim  forty  to  (Aur^^vr,  maklaig  a  dilbrtaiM  mar*  than  aijiul  to  tba  whola  tafitaatBta- 


502 


COSSTITUTIOK   OF  THE   UXtTO)  STATES.  [BOOK  lU. 


approral  is  now  alto^ther  a  matter  of  course ;  but  ancientlr,  it 
aecniR,  the  king  intimated  bis  wish  previouslj^,  in  order  to  aroid 


tiou  of  Vcnnont,  uid  Rur«  than  Biiffidiaiit  to  overcam*  har  whote  power  in  tto  Boom  of 
BoiiroMiiUtivM. 

"  A  <ll«pio]>ortion  BlmMit  oqutllj  atriking  b  imnitwlind,  if  w»  oomptM  If«iT  Totfc, , 
with  Alabuna.    The  populatiou  of  Alalaiua  ia  itt.iOS ;  for  tkia,  Ott  a  allowad  if 
■nembon.    Tha  tdIc  of  pnporium  wlikli  giro  to  bar  but  6r*  m«mbm  for  tux  nnmber' 
would  giva  la  Now  Yoik  bat  thirty'iii  for  her  inimbtir.    VH  Xew  York  recxirca  fonjr. 
At  eocDpared  sitb  Alabami,  tb«n.  Now  York  lioa  an  axotaa  ef  rvprMonUtlon  viiual  I9 j 
bur>flflba  of  thii  whole  icpnacinlMiou  of  AlalAni* ;  and  thU  auvM  lt*rlf  will  girc  I 
of  ooatw,  »  much  wm^l  in  tlia  IIoiiw  aa  tlis  wbulr  d«la^lion  of  Alabama,  wiiUn 
tlngla  *at*.    C*a  tt  b«  utd.  tbon,  that  rcpmantatirH  an  apporlionod  to  tfaao 
navniiag  (0  IMr  rajparitw  nutnttn  r 

"Thn  ratio  muioal  by  llir  bill,  it  will  be  pvrceiTed,  ]««vm  Uigv  fatetiou^  ao  cbUkI, 
or  midauj  numbmi,  in  «Ttnd  tt  the  titudl  Siatoa,  to  tht  mauifoit  loaa  of  a  put  oCj 
tbtlijuat  proparlion  of  n-|in-j:cntatlT«  powoT.  Snch  ia  tha  operation  of  the  latio  la  thisi 
rwpwt,  tbat  Nnw  York,  wlt]i  *  («piiUtiou  ItM  tliMi  Uut  of  N'ow  RngUnd  l>r  iKIrtr  or 
Ihirtf'fiiY  ihuuunil,  baa  yvt  two  more  memben  than  all  tbo  New  Eugknd  Slalsi ;  aad 
therv  are  Hvm  States  in  tbe  Utiioa  wbiHO  menibcn  omouDt  to  the  nnmbcc  of  lO, 
being  ■  clmr  minority  of  tbo  whole  Houae,  whoacaggregitc  liaction*  altqgether  mwtmt 
only  lo  fifty-tbrse  thoii«and  {  wblle  Y«nnoiit  and  New  Jtrwy,  haviny  tBge<tw  tot 
tleveii  iDMnbeira,  Lava  *  joiut  fractioD  of  (wvrTjty-iiv«  tbouauid. 

"  Peui^lruiis  by  thu  bill  will  havt^  u  it  baiipaiin,  just  aa  inaay  iBniibera  aa  Ter> 
noDt,  Kew  Hnmpahiro,  Mmnchiuntti,  nnd  Nc-w  Irncy ;  but  her  popnlatloa  U  tut 
•qual  to  thoir*  bf  a  hundred  and  thirty  thaiiuiiid  1  and  tiir.  PMaml  tt  thb  adnntige^ 
derived  to  her  from  tha  pn>r!«lotii' uf  tlu'  liill,  in,  that  bvr  [rai;tiou,ornaidiiuiu,ittwdT« 
lliouaand  only,  white  thein  ia  a  biiiiilrml  and  forty-four. 

"  But  tha  mtject  ii  capable  of  being  pieMsted  in  a  more  exact  and  nMthtnatieil.'i 
form.  The  Iloiue  ia  to  coniiit  of  two  hnndred  and  brty  membra.  Now,  tbc  pre«fa«4 
prupurtion  of  power,  out  of  the  whole  maM  t«)irmcnl«]  b)r  the  nvmben  two  handrel'j 
•nd  forty,  which  New  York  would  bt  tntitltd  to  aocordjng  to  her  populaljaa,  la  3S.M  | 
that  11  to  lay,  ihe  would  b«  enlitt«l  to  tbirty-oight  member*,  and  would  have  « 
unin,  or  fraction  ;  and.  even  if  a  member  wwa  given  her  tm  lliat  fivolion,  aba  w««U| 
elill  Imt'e  bnt  thlrly-nino ;  but  the  bill  give*  her  ferty. 

"Tbc«eareapan,audbuta  part,  of  thoae  multa  prodneed  by  the  bill  bita] 
fom,  which  tbe  oonimiltee  oaiiAot  bring  thcmadTta  to  apfottva.    niiilo  it  I>  not  to  ha  . 
denied  that,  under  any  role  of  apportionmrait,  aomn  Atfn*  of  r*lalin>  liin|iiDlity  Buatl 
always  eiiit.  the  commiUoc  cannot  belUre  ll»t  the  Statia  will  eanclion  inr^ealily  aad] 
iiyuMioa  to  the  BXtoiI  In  which  tliey  niat  in  this  hiU,  if  they  m»  be  avoedod. 
MColloctinK  the  oplniona  which  bad  bean  exprtaaed  la  tb*  dJewMJoai  «f  tbe  Senate,  I 
commlitM  hav*  diligently  aongfat  to  laam  whelbef  tbcfo  wa*  not  •ome  otiiei  numher  I 
wliit^  mdbl  be  taken  fcra  lUic^theapfdicatbwof  vhlcb««aUwari[«I  m>wBjMU(» 
and  equalily.    Id  thii  ptinuit  the  tsmmlttat  have  not  bata  «uora>eftiI.    Tlien  air,  it  ia 
inw,  other  sunbcn,  tbc  adoption  ef  whkh  wmU  rrlieve  dnay  of  llie  State*  wbicb 
euflhr  nn4(V  the  prtaint ;  bnt  thb  lelief  wauM  be  obtaiwd  only  by  Uitfting  tbe  praann  { 
on  toother  8t>it«a,  thne  onwting  n«w  grouadi  of  romrUint  in  olbor quattcr*.    Tha 
number  forty-foni  Iboniand  hat  been  ^nerally  ipaken  of  ai  the  moat  acm]rtahle  anhatl- 
Into  for  (orty<««Ten  thotwand  aena  hsudrod  ;  tnt,  iboaM  thit  br  adoptud,  (cnat  nbdn 
iMquaHty  mnld  Ihll  on  Mvenl  sua*,  ukd,  aawng  tben,  M  euuio  e(  tha  aa*  and  gn>w- 


CH.  IX.] 


nOCSS  OP  BEPBESGNTITIVES. 


£oa 


the  nec«8aitj  of  a  refusal ;  aud  it  waa  iicocdfd  to.'  The  very  lan- 
l^ugv  (uihI  by  tbc  8|>f4Lkcrs  ia  former  tlmt-s,  in  order  to  procure 

log  StMm.  wlioM  NbtlT»<Ui|niwmaD,  thus  4ln<iil}>  gmt,  nould  U  oonMutlj  JaetoM- 
JBg.  The  cofiiniitt««,  Uwnfnnv  an  of  a|iiDion  t)>nt  tlie  bill  ahauld  b*  •Itantd  in  Um 
nioile  of  aiipOTtioumcDt.  They  think  that  the  firocMs  nUcli  btgiai  bf  •Hmning  • 
ntin  ihoakl  he  nl«n<laaed,  muI  that  tbo  bill  ouglii  la  b*  fmned  on  the  |<tinFipIo  of  th« 
uncnilnionC,  whii.h  hajt  bMii  th«  malu  wlyiKt  of  iliwiualan  bsfoni  (hs  Smutc.  Tho 
ftlnivw  uf  the  |>nu(-i|il«  ol  thin  aiurndmcnl,  knd  Um  gCMial  oquitr  of  itji  Tuiilla,  con- 
pand  filli  iIjuk  ivLii'ii  How  Imia  tbc  othct  prooeMv  ■**■■>  pl^iB  and  Diidanlttblo.  TU* 
nuid  ijuriiion  hu  bcon.  «h«th*rlha  pRiidpla  ilBtlf  fcoBowtUvdoD&l ;  aiiil  tlii*  <|iM«lfoa 
the  cDiniiiitii'i;  piocccibl  ta  flMuiD*,  iwpMlfully  Mking  ot  Uh)m  «bo  hare  doubted  it* 
ix>natitiiii.)iial  [irujirialy,  to  dMni  Um  <|uoitian  of  to  nuch  ua{Nitutce  » l«  jiuUTjr  ■ 

Mcoiiii  [f  Use  [lull. 

"  The  worda  of  Ute  Coiiititutlon  ara.  ■  leptwmtatinaaMd  dirtet  taxu  ahaU  boapper- 
tioiMd  among  the  wT«nl  Stata*  which  may  b«  IntluiUd  within  Ihit  Unia«,  Mcontiiig  ta 
thatr  Newell i«  iiumbrn,  which  thall  t»  detarminnl  by  addiag  to  tba  wbulc  ouinbtr  of 
tuB  pcrwni,  indading  thaw  bound  to  (ervico  tot  a  tern  <rf  yran,  aad  exiludiag  la* 
diau^  tImo-Sfth*  ol  all  «(hcf  iwraoiu.  Tho  aeliial  anamcnilion  iihall  be  mado  within 
UtiM  ytara  aftnr  Um  flrM  aiwtlng  of  the  Congrou  of  tlk«  LfniUil  SutM^  and  within 
V*rj  ■ntacqntiit  term  of  tM  jtu*,  in  iiicli  inannnr  at  tWy  liiall  by  law  dinot.  Tha 
nuDibcrof  rtpnisntMiTiMaliaDiiotnMwilaiw  foi  «v«vy  thirty  tbaiuaitd,  but  aaah  Blato 
iihall  havfi  at  luuC  onn  nftwantatifa.' 

"Tlir[VH»iilJ«tun  toh*  Uttia difficulty  in  andantanding  thoa  piOTiaion*.  Tha 
tmni  Ufod  ura  dMignvd,  doabtlMi,  to  b*  itoalvKl  is  do  jirauliar  or  tMlinital  aenw,  but 
arrordinji  In  thrir  <iamiiian  iiiid  populir  •oeajttatioii.  To  apperliait  it  to  diatribata  l^ 
tit-bt  [iidHiir'',  t"  m:i  vtt  in  jai.1  iiiir4%  to  aMlgn  in  due  and  propra  propotttoD.  Th*M 
clausm  <i[  til'  (.'oiMtitntiuii  noi]ii'i't  not  only  iha  portiona  of  pvwor,  bat  tha  portion*  of 
the  pablic  biinlfu.  uLui,  wliii.')i  should  AJl  lo  Itw  aevcial  Stalta ;  and  Ibe  wune  laDgnaga 
b  applltil  to  botli.  Bcprearnlalini*  ara  to  be  apportionod  among  the  Stata  aocranliBg 
to  thaif  raqwctir*  numbtrik  and  direct  tana  are  to  bo  apportionod  by  tha  aamo  rala. 
The  end  aimed  at  i*,  that  rapmoitatian  and  taxation  ihould  go  haad  la  hand  ;  that 
each  Stale  ihould  be  repnaewttil  In  die  *aaie  citewt  t«  which  It  l«  mad*  antciMt  to  the 
pnblic  chaigea  bjT  dirwt  taxation.  But  bttwfien  tha  appoiilaumnit  of  repraMstatiTW 
■ad  tho  apportiowment  of  laxe*  tlulw  mptlMiily  «ri)ta  ana  eaaential  diSMBiMab  B(|>> 
nwmtailan,  lownded  on  niunb(t\  imut  hare  aome  limit ;  and,  Mag  Emn  iti  natoK  a 
thing  not  capabU  of  Indcttnlt*  eubdivMan,  it  OMUOt  bo  made  prede*)y  «<|waL  A  tai^ 
indenl,  caJinot  alwaya  ur  often  bo  apportioned  with  pariact  eiactneai ;  aa.laeUiiwiaat- 
toi  of  account,  tlifre  will  U  fhtetlnnal  parta  of  the  amolUa  <oin*  and  the  smallert  ^ 
■Mminationof  mnney  of  aoaouat.  yd,  tf  th*aMu]fubdi*W«iauf  the  ooin  and  «f  the 
danomination  of  ntonej,  the  appottioamtnt  of  taxw  U  oapable  of  baiiig  made  ao  auet 
that  the  inequality  baoMnaa  minvte  and  iannhlb  But  rapfaMBtalloM  eanaot  he  Ihna 
divbltd.  or  mnieentation,  than  can  be  nothing  1n>  than  one  rtpeaentatlTe ;  ne4>,  lif 
our  CoiMiinUow,  matr  ivpnwtntatlni  thwa  o«ie  fcr  erery  thirty  tbene*»d.  It  b  quite 
obfion^  thetrfort.  that  the  appartknumt  of  tepraMwtative  power  oan  nern-  be  piedw 
and  ptrficL  Thtre  mnit  alwayi  exut  some  dq^ree  of  inequality.  Th«e  who  fmmcd 
anil  thme  who  adoptrd  iha  Conatitotion  nn  <4  Doorw.  folly  acquaintol  with  thia  no. 
OMMry  OpeiMion  of  the  prtniilon.  In  the  Sonativ  the  Stalaa  an  catithd  to  a  Axed 
anubor  of  nwalew ;  and,  Uitntoe.  (s  regard  to  thctr  NfMaaolatlow  la  that  body 

>  Com.  Dig.  AtWtaMNl,  E.  S ;  1  IwUt  8,  Lex  Pari.  eh.  13.  p.  H. 


504 


coNsnnTTtoit  of  the  irnvno  states.        [book  m. 


the  apprOTBl  of  the  crown,  waa  anch  aa  would  not  now  be  toler- 
ated; and  indicated  at  leaat  a  disposition  to  undue  aubsenriency.* 

thm  ia  DO  DaDHiqu«ntk]  m  incidMitd  intiquaUtj'  ttiting.  BM,  being  r»pwtnl»d  la 
tka  Kaiue  or  BvpRBcnbtiTca  according  to  Ihm  nsptcttrp  nilmlm*  of  pwpla.  it  ia 
mMmtiJibtD  that,  in  MrignSiigtoMch  Suite  iUnnmbcr of  neoiben;  the  exact  propor- 
Hon  of  eaxh,  out  of  •  given  nnrabcr,  CMiDot  tlwij*  or  ohen  bt  ciptoiwd  in  whole 
nimbai* ;  ilwt  i«  to  mr,  ii  will  not  of(«n  tm  fonnd  tlHt  tb«T*  Mong*  tn  •  aoits  sxactljr 
oiM  truth  orona  tatnlirth  or  oiiu  tliirUMli  ot  the  wlinla  HoitMi ;  tail,  llMnfcn^  BO 
number  of  npi«IMitati«'N  will  uivrtly  larmjiaDd  wUb  Ihv  rigbt  of  such  Stat*,  or  Ilia 
pnciM  diara  of  rvpreaentntion  whir^h  bcloiigi  to  it,  acmrding  to  its  popnlalion. 

"ThoOMMtittitiDD,  thcnforc,  mad  bn  unJontood,  not  a«  enjdoing  an  ilaalatB  rd* 
■tiv*  Mioftllty,  —  bcRaoae  thni  vroiiM  l»<Irrnuin<llngaiifBipoMlbi1iCr,  —  but  aa  nqntrinf 
or  Cvnynt**  to  ni>lc«  t1i«  jtpj^nrUun  111*11 1  «f  ropttatntallva*  uiioiig  tho  a>rMn1  $tMM 
acconllng  to  thrir  mpvctive  nunibpn,  lu  n«iir  at  mm)/  b>  Tbat  wliidi  taiinot  b*  dotM 
perfectljr  mnit  b«  done  in  a  manner  u  nnr  perli>(4ion  at  out  be.  ir  nactont  can- 
ant,  from  the  nacnrc  of  thlcgi,  bt  attaincil.  then  the  gnalcM  pnftieable  appraacit  to 
•xaclniai  oii{[hl  to  bn  initdn. 

"Oongnaa  la  not  ataoIrM  rrom  ill  nle,  marrijr  bstnua*  Uio  nil*  of  ptrfKt  jaadM 
eanaot  ba  applied.  In  nich  a  eu%  apprssinution  bKoniea  a  niU  1  it  takta  tba  plane 
•f  that  other  nle,  vbich  would  be  pmfmblc,  bat  whkh  is  found  intpplicabiti  aad 
Immcom^  liaelf,  an  obligation  of  Undlnn  t<iKa.  Tha  noartat  apptoxlmatiea  to  tcaet 
truth  or  exact  right,  wb«n  Ihnl  txKi  tnilh  ut  tliat  «xact  right  eannot  iudf  b«  PMcfca^ 
prerailH  tn  oilier  eas«^  not  as  matter  of  dimetion.  but  u  an  iDtrlU^ihle  and  <Muit« 
rule,  dictated  bjr  juatioe,  and  conforming  to  the  comman-tenie  of  mankind  ;  a  rule  of 
no  Imi  bindinjt  forne  in  eaan  lowlilch  It  l«  applJMblrv  and  no  laon  to  badapartad 
hvBi,  than  anj  oth*r  rale  or  obligation. 

*'Tb«eaDimlttM  underrtaud  tbeCouititution  ai  tliey  would  hare  nadantood  it.  If 
it  had  Mid,  in  »  miny  worda,  that  reprMenlatin!i  ibould  bo  apportioned  auMog  ibe 
StatM,  *«carding  to  thfir  napect)*!  noaiben,  u  war  a*  may  hv  iriUtb*MitIairM 
■neanlnji,  Ihnn  tt  bai  tithnr  jj^Ton,  on  tbia  matt  dellcal«  and  important  ratijecf,  a  ml* 
which  ia  alwKjrs  inifmetlralite,  or  'Iw  It  faaa  giren  no  rale  at  all ;  becnnae,  if  the  rule 
ba  that  pcpiwtntatiTW  ahaU  be  apportioned  eattllg  aoemiliiig  to  nomberii  It  ii  Imprae* 
tlaaUa  In  trmj  caae ;  and  if.  for  tbi*  leaMn,  thai  cannot  be  ikt  ral^  then  l]iai«  i«  no 
rate  whatwfar,  nnlaaa  ihtmlcba  that  Hu^iball  WapportbntdiuiwarMmatih^ 

"Thia  oanatniution,  tndeod,  whirh  th«  mmnnttee  aiJopt,  baa  not.  lo  tbrir  knowl- 
edge beta  denied;  and  thejtvoond  in  the  dimiBion  of  tiiaqncalMni  befon  U>e  Ban- 
ate^  taking  br  gtanted  that  *neh  ii  the  true  and  nndonlabla  nuanlog  <f  tha  Conitltn- 

tlMI. 

"Thanait  tblngto  be  obeevml  it,  that  tb«  Conttitntlna  pnaeribea  no  pattfcolar 
procnn  by  which  tliU  *ppar1ienm4nl  it  lo  be  wrongbt  out.  It  hu  plainly  draciibsd  the 
end  to  be  accooiflialieil,  namely,  the  neanat  approach  to  rdatirc  ecjoility  of  rtpim n- 
tation  among  tbe  Statei ;  and  whntercr  aocnnpUiiin  Ihia  cud,  and  nathtng  alw.  It  the 
tme  praccw.  la  tratit,  if  «itboDt  any  proteu  (rbslcTer,  wbrthn  nlabnml«  orMwy, 
Oaijpnw  oenld  permvo  tbn  exant  proportion  of  mpnwotatlre  powpr  tiglithitly  bebng- 
Inti  10  aaoh  State,  It  would  parftctly  folfll  Ita  dntj  by  coafoning  that  portra  on  Mcb, 
wftlioat  lettrenoa  to  any  ywowa  whatevrr.  [t  woald  be  enon^  that  the  prapar  and 
had  been  attained.  And  It  1*  lo  be  ranarkcd  farther,  that,  whether  thli  end  \*  attained 

>  Sae  ChrtHlafi't  Xote  to  1  Black.  Comm.  181 ;  Comn.  INg.  PtrUtmnt,  K.  B ;  1 
Wn*M'«  Uw  L«;t.  1G9, 1«0 1  4  Co.  Inat.  8. 


CH.  IX.] 


nOUBE  op  BEPBESESTAIITra. 


60ft 


A  Bimiiar  power  of  approral  existed  in  the  rojaX  goTernoro  in 
many  of  the  colonies  before  the  BvvolutioD.    The  exclusive  right 


httt  by  oDf  pTocfw  cr  by  uother,  bMoiBM,  when  «aeh  fjacm  hu  bera  curitd 
tbnugh,  not  mailer  of  opinica,  bat  natUr  ot  BatlwnMtMil  ctitiiBtj.  If  tlw  wbala 
tni'UlMion  of  ihu  Unlud  9Mmt  tiw  p^nhtioB  •f  «adi  ftata^  ••d  Iha  fnfouat  luunbcf 
n{  tlw  HooM  of  RaprMMUtlVM  ba  all  pi-cD,  tbcD,  tntmai  two  Ultt  ippattionuig 
the  mvTiibm  UDong  tlw  ttnrti  SuM,  It  taa  b«  told,  witb  sbMluU  cirtiJaty,  wbioh 
bill  uugni  to  uijr  uul  «TFi7  Slate  tlie  nuiubc*  DtarM  t»  the  «tacl  ptojwttloB  ol  lh*t 
Stale  ;  in  otbn  woidi^  wUcli  of  the  two  biUi,  if  nitlur,  apporlmia  tbe  i«|Jt«MntatiTM 
Moording  to  tb*  nanibtn  in  tb*  Stntca,  mptctivdjr,  at  xaor  m  aMir  Iv.  ir.  tborefon^ 
a  pMtleuUr  ptrnvn  ot  apponitmaiaDt  b«  adopted,  and  objcctiMi  b*  nada  b>  tba  iajw- 
ties  «T  iuoquality  of  Ita  Rnill,  il  is,  Kunljr,  ii«  aaavar  ta  ndi  afejaetba  to  iWT  that  tba 
)i)«qiMlit]r  ncoMMiilj  nralla  fran  tba  satonoftlia  praew.  Btfci*  autb  aiwww  could 
avail,  it  would  ba  MOMwy  t*  ihow,  *tQut  that  tba  GonalitBtimi  pcaeribaa  MacL  pn- 
oaat,an4  makaaU  Dmnmit',  «r  tbat  thanianootbar  modaaf  prootadUig  wUeb  woold 
prodnca  IsM  faxiuaUly  and  Um  Ujadiua.  If  beqiudlty  wblch  mtgftt  bar*  oibatwl** 
bean  aToided  bs  produoad  b^  a  givan  pfooeaa,  tben  tbal  proon  in  a  wrong  om.  It  m 
oat  antlad  to  tbe  caM,  and  dumld  be  i^>Ml«d. 

"  Xor  do  tba  commitlao  paroure  how  It  can  be  tnalttr  of  oaoMitiUknial  impritty  or 
nUdity,  ta  Is  any  w«j  ■  conatliuiunal  qntatinni  wlethN'  tba  pToeaaa  wbieh  nay  ba 
apjdinl  to  the  caae  be  aloqila  or  tompoand,  ana  prucae*  er  many  procaaaa:  wiata,  ba 
the  Old,  tl  may  always  be  aaen  whether  the  molt  be  that  which  haa  ben  aimed  at, 
namelj,  the  ncaitwt  practicable  approadi  to  prccia*  jiutjot  and  relative  njaalitjr.  Tbe 
CtmnitW*^  Indeed,  are  of  ofdnion,  ia  tbia  oaae,  that  Um  ainiflcit  and  dumA  obrioM  wajr 
of  pimeading  ia  aba  the  tne  and  oonelitnlioad  way.  To  Ihom  il  appMnv  that,  in 
eanybig  into  eOlMrt  thi*  part  of  tba  Conalitution,  tbe  fitit  ibing  natnrally  to  be  dcae  it, 
to  deetde  OB  tlio  whok nnmber  of  whidi  the  Hoiueu  lobeeowpoaed  ;  •«  wban,  nnder 
the  larae  elanM  of  tin  Conxtilntlon,  >  tax  ia  to  be  apportioned  amoiiR  the  Stotaa,  the 
oauniat  of  the  whole  tax  ia,  iu  tlie  flnt  {into,  bi  W  wtUtoi. 

*'  Wbcu  the  whole  number  of  the  [vqwaed  Huum  in  tbiu  aictrUined  and  fxed,  it 
beoemaa  Uio  entire  rcpnaeotaiivo  power  of  all  Xhr  people  in  the  Union.  It  ia  then  a 
vaty  linple  osltar  to  eacertaln  hnw  ninch  of  thi*  reprcMblatiTa  powtr  each  Stale  it 
cntillnl  to  I7  it*  naiab«r*.  If,  for  ainmple,  the  Uobm  ii  la  contain  two  hundred  aad 
forty  Mtoabem,  then  the  number  two  hundred  and  forty  axpraeaaa  iha  rapraMntatlT* 
power  of  all  tbe  Stain:  and  a  plain  valcuUtion  nadily  ahowt  how  Binch  of  tbdl 
power  belong  to  each  State.  Thin  portico,  it  h  true,  will  not  alinxj^  am  «Hra,  be 
WpnMed  in  whet*  aamban,  bat  it  may  alny*  be  pnwiatly  exhibited  by  a  dcdMal 
fkrm  of  expfwaahMi.  If  lb*  portion  of  any  Slate  be  vldoin,  or  ncTer,  one  exact  teatl^ 
one  exaot  fiftomtb,  or  on*  axact  twrntktb,  11  will  *UU  alway*  be  npabl*  of  pteijii 
decimal  expCMMO,  *a  Mie  tealh  and  two  hundndlh^  OM  twelllh  and  (our  bwadndthih 
one  tneenlb  and  dx  buadiadtlu^  and  ao  ou  1  awl  tbe  exact  perlian  of  Ike  Btau,  being 
thnadeefanally  >x|iiiiit,  will  alwaya  ihow,  to  malhf  *tioal  eartaintj,  what  luu^ial 
number  ronca  neanat  to  *U«h  oxa«  partlon.  For  exnnple,  la  a  Honae  '— ^i^ng  ot 
two  baitdied  aw)  forty  moaban,  Ih*  oiart  mathematlMl  ptopertion  t»  whibb  ber 
BumUtB  eeititle  the  State  of  Kcw  York  ii  SS.S9  ;  U  ia  0<riala.  Uwnfan.  that  thirty 
■dtM  la  >h*  lnli«ral  or  whole  nnmlier  neurit  to  her  exact  proportion  of  the  irprveeiitB- 
lire  power  of  thr  Uaiea,  Why.  tbta,  ihotild  the  not  hare  thiitj-niael  and  why 
dioaU  ebe  hare  forty  t  Bhs  i«  not  ^uit*  entitled  to  thlrtynlac  ;  that  nambn  1*  anme- 
thlng  more  than  her  right.    B«t  allowing  Imi  tUjty-nlD%  bom  the  neeaeiMy  «f  girlog 


b09  OOKSTlTlTTtON   OP  THE  UKITED   STATES.  [dOOK  Ul. 

of  cliooaiiig  a  speaker,  without  any  appeal  to,  or  approval  bv,  any 
other  department  of  the  goverumvut,  U  an  impruvemcat  upoo  tho 


their-. 


hor  whola  nuiiiben,  uJ  beeuM  that  U  Uio  nnivat  whoU  nanilMr,  it  not  tke  CoaitiUk- 
tion  fnlly  vbejrwl.  wlwa  iba  hM  iMeJTod  tbe  Uilrljr-DiiiUi  Munbcr  I    I>  not  brr  praf«r 
nuinbtr  of  (epTHPnlaUves  ibw  (ppgrtMiiod  to  her,  u  imn  u  inajr  ba  I    And  ii  not  th> 
Conititiitinri  dtin^inltiil  wheu  the  blU  !«■  (urihxr,  and  giTo*  b«r  ■  focurth  tmtmbv  I 
F«rw>utU  lucli  ■  (ortieth  muoWr  giiren  I    Not  Rm  hnrtbablnt*  ■iiinliu*;  far  bar 
■bMlnte  nmnben  do  uot  antjtla  hir  to  thirty- iiin«.     Not  tor  Xhe  Mks  of  kpportiaBfaig 
her  iMBibcn  to  ]uit  umnimn,  u  near  m  iiii]r  be  ;  b(«uu«  thinjT'iiiao  w  a  a»va  afilMr- 
tknmmt  of  mnnbtn  to  nuinben  tluui  forty.    Bat  it  i»  pvoa,  vy  Iha  adracstta  of  Iha 
HU,  bwMM  tha  procttt  vhich  liu  b«n  luloplod  give*  il.    Tli*  UMwr  bi,  no  tMh 
:  it  (tywnad  by  lh»  Contlllatlon. 
'  The  etmt  of  New  York  may  lie  eompa[»d  ta  MOtmMcd  with  that  at  Mlaonri. 
The  exact  proportMn  of  iLmoori,  in  a  general  repnaautatkui  of  tno  hu»dnJ  aiuj  turty. 
It  two  aiul  fix  lentht ;  that  ia  to  uy,  it  eomca  ntacnr  to  tiirM  usmbm  ihaa  to  twoy. 
y«t  il  it  ooiiGned  to  two.     Bot  why  U  not  Uiaaoari  entitled  to  that  Buwibur  of  iT]<r^^ 
■Mtatina  whiah  otnM*  ntanat  to  her  exact  ptoportlon  r    It  IIh  Cui»tiiuiMD  fotfitlad 
at  to  hor,  whfla  that  mmber  it  withheld,  and  while  at  the  nine  liiuo  in  another  ftath 
not  only  it  llial  nearait  nnmbar  RlTen,  bat  an  additionti  mMobtr  |tlv*n  alio  '    it  It  an 
aumr  with  wliirh  the  peopW  of  MiMOuri  ought  to  be  latJtGM,  wImii  it  b  said  Ihtl 
diu  obrious  injiutiee  it  the  neoBMry  mult  of  the  proma  adotrted  by  Ihe  bill  1    May 
thny  not  uy  with  tiropriety  thai,  atnoe  three  ia  the  ncareat  whole  Dnnbcr  to 
OiacE  rlxht,  to  that  nnnibor  they  an  entitled,  and  tho  prortat  whlek  dtprina  Iha  ' 
It  inaal  be  •  wrong  priKMt  t    A  timilar  compariaen  tnigiA  bt  toada  betwMn  N«w  T« 
and  VennoRt.    The  «not  propoiliea  to  which  Tennonl  ia  ontllled,  in  a  nfiii 
of  two  hnnilrK)  and  forty,  ia  t.tW.     Har  neartat  wbolo  uwnliRV  Iheiefoif,  w«bI4  ' 
fix.     Now,  two  tliiiijf  am  nndanlaUy  tree  :  fint,  that  to  take  away  the  brtieth  i 
b«r  ftwn  New  York  would  hring  hfr  ni<raFiitatioii  nearer  to  her  exact  ptoportMn  I 
it  tiaada  by  Ipuvujg  Lcr  that  fortirth  member.     Sorondly,  th*l  filing  tha  Mce 
thot  taken  &oin  New  York  Xa  Vormont  would  bring  her  np<M(«taUu*>  ntarar  lo  '. 
•not  ri^t  than  U  ir  by  the  bill.     And  both  tbvta  f««p«tioni  are  equally  tnie  ef  i 
tnntfcr  of  the  twenty -vitibtli  iiii>inb(r  aMtgned  by  Ibe  Irill  to  Ptmeylrania,  to 
wtic,  and  of  the  thirtceiitii  n»iiibn  amigned  to  Kentucky,  to  Ulaaonri  ;  (n  olhar^ 
worda,  Tcrmont  hai^  by  her  namben,  nntv  right  to  iji  mnmben  than  Niw  York  hat 
t»  (bt^.     IMawam,  by  her  numbtra,  hint  morn  right  to  two  membtn  than  Pemiayt 
rania  bta  to  twenty-eight;  and  Mtttouri,  by  her  nvmbteti.  boa  mote  right  to  thrt*l 
■nembera  than  Ktotmky  hat  l«  thtTt««i.     WiAout  dittnrhing  tbt  pw|aatd  nuinl«r  tt ' 
the  KooiF.  the  mare  changing  of  theat  Hirtt  merabMH,  (torn  tad  to  ibe  aix  Slalea  n- 
•Iiectivoly,  would  brlnj{  the  rrpreaenlatiaa  oC  tiM  whole  aix  ororei  lo  their  doe  ptopor* , 
tion  aixordiiix  to  tbrir  resptcliT*  onaahei*  thaa  die  bQl,  in  ila  jirmant  form.  Riakaa  IL, 
In  the  fan  «t  tliii  iDdiapulablo  tmth,  how  ran  It  be  tald  that  llw  lilll  ajiportlont  i 
ben  ef  Oongtw  among  Ihoae  8tat«,  awarding  to  their  mpMtier  number,  luiueraa^ 
may  it  I 

"Tlie  prlndple  on  whldi  th«  propeatd  anMndmmt  la  fonaded  it  an  cAMval  eoeiM- 1 
tin  fbr  thaaa  and  all  o<h«i  aqunlly  gr>at  lnt>iiwliti«i.  It  mty  be  applied  *1  all  t{«ai 
and  in  alt  cmm,  anil  It*  reaolla  will  alwayi  be  the  nearart  approach  to  pcrffrl  Juadoe. 
It  ia  eqmlly  nnple  aod  impartial.  An  a  mie  ofapportioamcDt.  it  la  lltila  otlier  tlian  a 
tranacript  of  the  wonla  of  Ihe  Coattitntion,  and  tta  i«tn1ta  arw  nttlieBUirally  cettala. 
TIm  CoMlltntioa,  at  the  comBittee  nndenlaad  it,  atyt,  tvpnatntatiew  ahall  he  appec 


CH.  IX.] 


UOUBK  OF  nEPRGaEHTATlVES. 


SOT 


Britifih  Bfstem.     It  secures  n  mora  indopoadcnt  and  unlimited 
choice  (HI  the  part  of  the  House,  uccordiDf^  tu  tJio  moritii  of  the 


^ 


tlontd  ungBg  th*  SUtm^  MoartUng  Ut  tliiir  nafmilire  nnnibtn  of  people  u  nmr  m 
«■>;  h».  Th*  rule  mdoptnl  b;  tlw  cwnmittn)  nyi,  out  «f  the  whoh  miBba  of  Uw 
nmue,  that  noiutKr  dull  h«  iiipartiontd  to  aeh  Stat*  whk^  tmtm  luuvt  t«  Ua  aucl 
righi.  «««t<dJn8  to  ita  nnmbtrof  poojiU. 

"  WtiHR  U  (h«  rtfwgiuaojr  bMvMH  tlisCanMitnlionaiul  Iberulel  Tluugiuaeata 
tgtiiM  ihv  nle  nem  to  nMune  that  Xhtm  ia  ■  ne«B*iit]r  of  inititnting  Mmo  [ifotwi^ 
adopting  aoino  nomber  a*  tbc  nttio^  or  m  tbai  nombw  of  paople  whidi  nch  manbw 
■biJl  U  DXidontood  to  Nptawiit ;  but  lh*oanniitta«M«iiooccaalaBfatsiij  oUmt  pro- 
MM  Khatvnr  tha«  if mplr  lb*  tonrtalnintnt  «f  that  fWMfHn,  out  of  iba  mMe  warn  of 
tlie  npnamtatiTa  poBsr,  vhidi  BKh  Stat*  11U7  olaiai. 

"But  it  ii  Mill,  ibat  although  »  State mnrrrwire  a  ■innbw of  tTfiWBiitatlv  which 
la  (ometliinx  iett  than  Ita  axact  jiroportiein  of  rcprewntatlan,  yd  tku  (t  can  In  no  cat* 
MMtitMtloualljr  rvoivs  mot*.  How  b  tiiii  |<n>paiillan  jkutpI  r  How  ia  it  ahuwii  that 
the  CoaitltatioB  it  tm  pMfntljr  fullUlad  Iiy  allowing  a  8lat«  a  amall  txMm,  tlua  hj 
aufajfcting  btf  to  a  krgc  dcficivncy  I  What  the  OonitttatMOi  it^airM^  fa  the  imnat 
pracliMhIa  appTMcli  to  pmiw  juMioc.  TIm  rale  ii  appnixtidatlon  ;  and  wo  ouchl  l» 
am<mch,  tharafor*.  on  whichnvr  u-ie  we  can  approach  naaicu. 

"  Bat  there  ia  atill  a  nan  couvlu»tT«  aunwvr  to  b«  given  lo  thi>  >iigBntioa.  The 
whole  nnnber  of  npceetntaliTn  of  which  Uw  Uoiuc  ia  to  be  «ampoMd  i>,  of  nxwdty, 
limtUd.  TbU  number,  whatevi*  it  i*.  u  that  which  ia  to  be  appoitioncd,  and  notUag 
cIm  can  he  apporlianod.  Tlib  ia  the  whole  auin  to  bt  ilittHbalnL  IC  tbenfot^  !■ 
making  Uie  apportiodnieol,  emui>  StaMa  tetcira  1(M  than  their  jut  (hare,  it  mwt  neee^ 
lariljr  folio*  that  eome  other  Statca  have  rrednd  moi«  than  thclt  Jnrt  ihara.  If  there 
be  one  State  la  the  Union  with  lea*  than  it*  right,  aome  other  Statu  hu  niom  ilun  lie 
t^ht,  «a  that  the  aigunnt,  what*t«r  b*  ila  far«e,  eiifliM  to  the  hill  in  ita  pment 
form  ai  elwoigl;  m  it  oan  errr  apply  to  any  bill. 

**  Rut  the  clileetiisn  matt  nnullj  ui;p9d  i4{aiti*t  tile  principle  ef  the  pn|*aaad  anmd- 
meni  !>,  that  it  pnmdea  for  the  »(iwaenlaliiei  of  fnctiena.  Let  tbi*  olyeetion  be  ex- 
tmiiieJ  and  MntUend.  Lei  U  be  aneettetned,  la  the  Bnt  pitat,  what  ibcea  lnc«loni, 
or  fiactional  numberii  or  neidoery  aumben  really  ar*^  whkh,  it  l«  laid,  will  be  repre- 
■ented  ihoutd  the  ammdment  pnrail. 

"  Jt  frartion  b  the  brakm  fmn  of  iMBe  iatef^  number.  It  u,  tberefonv  a  nJatira 
or  deeivetlve  Id**.  It  ImpUe*  the  pecTwna  ciiatenee  of  eome  fixed  nnnber  of  which  it 
b  bst  a  part  or  rcBaindc*.  If  there  be  bo  oModly  for  ftiing  or  eetabllehlng  aneh  |>*- 
TiMM  nttmbrr,  tlten  the  ftaetioD  teauliing  frou)  it  i*  ttadf  not  natlar  nt  n*o**iity,  but 
natter  of  ehdoe  «r  aoddait.  Now,  the  argameDt  wtiieh  toaeidm  the  flan  ftvfoatd 
Id  thf  amtodineMt  H  a  nfnauttttMm  ol  fnrtiem^  and  theRdoro  nMaulibatiettal, 
amimea  aa  ita  heaii  ibtt,  aeeocding  to  th*  Oenttitntion,  ertry  menbtr  of  the  Hob**  of 
Bepreetatatirea  TCfircanit^  «r  eoght  lo  repreaeat,  the  aaMe.  or  Marly  the  (um  BUMb«r 
of  eonotiluenta  ;  that  tUaMBbcria  lo  beregaidadaaan  integtr;  and  aaything  hea 
than  Ihi*  U,  lhef«fon>,caUnlabaction«rariHidn«m,  endoBiiaot  beeaititin)  toarepre* 
tentelire.  But  Milling  of  Ihla  I*  preaerlbtd  fay  the  CanaUlntion  of  the  Dnikd  Statea. 
That  Ccoutitntkei  ceateMplatee  od  Lntqpr  er  aay  oeoNBMa  nvmber  for  tke  osMtiliiNita 
of  a  mombtrof  the  Hoow  of  Rfpnemtatjeia,  It  gNi  not  at  all  into  thaee  anbdiiiektt* 
«f  tbepofraUtlonoraState.  It  p«»ridealbrth*apf<«etioMD«Bt«f  ruirewntattrnamoag 
M#  mrrrat  Slalet,  acrardi^  to  their  r*if*e(i*o  nnnber^  aad  ilopa  there.  It  Miakee  no 
preriuoti  Tor  th*  reprraenttllen  of  illetrtcte,  of  State*)  or  to  the  repieeinlatton  of  any 


SOS 


COKSTITCTIOK   OP  T1IK   DNTTEU  8TATBS.  [BCKJK  m. 


IndiTidiial,  and  tlicir  own  Hons«  of  dutj.     It  avoids  those  incon- 
vcniciices  and  oollmioiia  wbicti  might  arwe  from  the  intcrpoeitioa 


pottlon  of  111*  p*opl»ofa8ttU^kM  tbra  tho  «)mI«.    It  wji  notfalpy  of  ntk«  or  of 
coustitumt  nambfn.     All  thaw  thinff  it  Imvb*  to  Stale  ItgUUlka.     TiM  right  wklck 
Mteh  State  po«iw«i  ta  Ha  «>k  d«e  padMO  o(  thr  rtprrwutMi**  [mwr  h  •  9lalo  ligbW 
iCHclIy  ;  It  iMilonjci  la  the  State,  ••  a  Slato,  and  ii  in  to  be  Djed  and  exeitiMd  aa  tka\ 
Sum  majr ««  fit,  auttloM  ooij  m  tb*  coailUnlloaal  qiHtlJkatiaea  of  elecUn.     Ib  theX, 
tlw  Statca  do  make,  and  alwajr*  haf*  iiuul*v  4Ur«i«Bt  jmrMon*  for  Ilia  nsnim  of  ilri* 
power.     In  Miino.  a  nii^  inMiib«r  ia  choata  for  a  oaittln  daBaMi  diatriirt :  in  ulbrm, 
two  or  thre*  nifmbon  ai*  ebMrn  for  the  Mine  dklrict ;  and  bi  mme,  ngioi,  u  Htw 
H<iiiir«hl»^  Rhod*  lalutd,  CbmtMstiovt,  New  Jtnejr,  ud  GMOgia,  the  eniitc  w|Wf» ' 
Utiuii  uf  Uin  8tat»  b  a  joist,  undivUfd  rqinMnlatkm.     Ib  tbaio  liat-nentienad  StktBi,  ' 
ever;  membc*  of  the  Hoiun  of  Re|««iMDUIi*M  bu  for  hi*  «an«tltu«nl«  all  Itw  poofila  «€  ] 
tiie  State ;  and  all  the  pcojiloof  thoM  Blatw  an  coaut^ninitljr  lepnatDled  En  that  bn»cb 
of  Conirnni.     If  tha  bill  b*<Drt  ih*  SnuO*  dioald  {bib  into  a  In.  i»  its  [unuil  fonn, 
«hiit«T«r  iiijunllne  K  might  do  to  any  of  thoaa  Suui,  it  would  no*  ba  correct  ta  aaf 
of  Ihein,  DfrreitfaslcBi,  lliat  any  portion  of  tlidr  pwpit  wm  nnnprrauiled.     TIm  mil- 
founded  otigrvtioB  would  be,  o«  lo  aernia  of  them  at  hnM,  Ikat  th*;  vor*  MOt  adeqnalelv, 
oompetontlf,  Gttrly  r«|0«enitod  ;  that  thejr  h*d  not  *a  naaj  Toina  and  as  nuny  roUa 
In  lb*  Htnuaof  B«iina«BtallTMMlb«ywar»anlltlod  to.    ThiivKmld  he  tba  oldeetkm. 
Th«c««roiiMbeBOtUinp(eaMtalftMtknai  tiat  tho  Staf,  aa  a  Suu,  a*  a  vhok,  "<mU 
be  deprirtd  of  aome  [«rt  of  iU  just  rigliU. 

"  On  thi?  other  himi.  if  the  bill  shoald  paM,  aa  it  ii  nonr  pmfioaed  to  bo  aaNwIad, 
than  would  b«  n»  raproarautinn  or  frnetioiM  in  an;r  i^fto  i  for  a  mctioM  mppttim  a 
dirition  and  •  ranuinder.  AH  thxt  could  Juatly  be  nid  would  be  llial  bomm  of  Am* 
SUKe;  M  Stalra,  fammui  a  portSon  of  h^idatiire  power,  a  Utde  hugtrtlm  thtittaMt 
rigfat  ;  lalt  mart  be  admitted  thai,  iboHld  the  Ullpaa*  ntiamendad,  they  would  |NMHa 
of  that  power  mncli  !«•«  th»a  that  cnot  tight.  Tha  Mue  remark*  are  anlwtuntblly 
tnt.  If  apfllod  to  thoM  Statea  which  adopt  the  dlMiM  ajntem,  aa  mort  of  them  do.  In 
MiMouri,  for  emnple,  then  will  be  no  heclion  unrepre— tiJ,  should  the  UU  beconw  » 
law  in  ita  preeent  tam;  noran;r  iMenberfbrafrBCtloa,  ahosld  thoanendtoant  prendl; 
bpeauw  the  node  of  apporttonment,  which  aasiftni  to  «a«h  State  tkU  nnnbee  wliieli  It 
neareat  to  it*  eutet  right  appllv  no  aHanied  rstioi^  maluv  no  aabdletdeni^  and,  «# 
eoarMipKMiuceenofnctJans.  In  tlteone  caMOrlu  tbaother.dioStaK Mediate,  wilt 
hara  Mmething  mora  or  aome(hin)[  leas  than  Ita  exact  peo|iettlon  «f  lepeeaenUlii* 
powtr ;  but  »he  will  part  ««t  thi*  power  amonit  htt  own  pM|>k,  fn  either  ia*e,  in  muh 
mod*  a*  ehe  may  ohooae,  or  aterttM  it  alto^thar  aa  an  entire  repreaeutatioa  of  the 
people  uf  the  Stale. 

"  WMher  the  lubdlTMioa  of  tha  r*pn«nitatm  power  iritUB  any  StaU^  If  tlin«b« 
s  lubdiTlsiou,  be  w|na]  or  luiBqaal,  or  lUrly  «r  mUriy  nrndi^  Oensraai  canaol  know, 
and  baa  no  aatboritr  to  l»qnJPB.  It  (•  •aoo^  that  tlw  SlBlo  prawnle  her  own  TVfae> 
eMtntJonon  thaSoor  of  Canjpeea  In  the  Mode  rite  dboMM  to  pmenl  it.  If  a  State 
wot*  In  gir*  one  poetion  of  bcr  tarritorjr*  repteeeatatJTe  for  ewetj  twenty-lire  tlxinHud 
penHin*,*»d  to  thereat  a  wftesenf  tie*  only  tor  erary  Utf  thoueead,  it  wenM  he  an  act 
of  naJMt  lecUlatlan,  doabtlMs,  tail  it  wmhl  be  whoUj  btronl  redreae  bftmj  powe*  In 
Caagra* :  beoanw  tb«  OsfnHtntlDa  bsa  left  all  thi*  to  (be  Atete  ttaelf. 

••nHae<«iuMeMian9v  It » ihoaghl.  may  show  that  ihc  C«n«lilutlan  !>■*  not.  by  any 
iia|4lt«tlon  or  nscemary  eonatraotian.  etijolnad  that  which  It  eertaialy  h»a  not  ordalnad 
iaUraa,  tit.,  Ihaieveiy  DMonberofdio  HovMihaU  boaBppMedloKfnaealtiwMMi 


CB.  IZ.J 


HOi;SB  or  [lEPR^£KTJlTtrBS. 


509 


of  a  D«gative  in  tiroes  of  high  party  excitonient     It  exttagnishe* 

»  coiuUut  suurcv  oi  jcalous>-  aiid  bearU>uruiDt; ;  aud  a  dispoaitioD 

kuBWr«f  MD*tlto«nta:  ud  llMnlbta,  Hnt  the  MnuDptlim  af  ■  mUo,  w  repirMatiiig 
th«C«nwB»  WMnbtr  ofeoDrtitf  t^  ii  at  olUd  foe  by  tjia  Cou«titalJQH.    AllUutCte- 

gTMt  U  M  Ubrtt)!  W  do,  «■  It  TOBid  MM>,  t*  to  dtrl>U  tho  llbole  N[ltC«IDUIlT*  piM>«r  of 

the  Udmoi  into  tir*otr-four  fut*.  twining  on*  put  to  cub  Stftta,  u  nwf  m  pnotiiftUe 
MDonliiig  to  lu  right,  aad  tM*iiig  aU  mbMfUMt  utnagmuait  «id  tU  wbiUrUaw  t« 
ihiSuioitMlL 

"  If  Um  view  tliiu  taksn  of  A«  righu  of  tbo  9U(«*  uri  (b*  d«tui  of  CongftB  ba  tlw 
OCOMl  vicB,  then  Ik*  plan  |>nipM»it  [a  ibauMNidaiNitiiinMJuttKnMBnpnMn- 
tatiM  of  fncttonft.  But  ni|ifieM  H  wu  otberwue ;  (oppoM  ■  dlncl  diruioa  wwtB 
mad*  fnr  iJlovrl^  *  rapwHUativn  to  or«y  8tat«,  In  whoM  pa|iul*lioiH  it  being  fint 
difUad  b;  B  «Muno«  ntio,  tlun  •bonld  b«  Anind  aftaotiaii  auatdi^hBirtbtaiBOMM 
of  ttiat  ntta^  Kliat  coMtitaUoiMi  objection  moM  be  birij-  usmI  a|^BI  anch  a  pn- 
Tuion  r  Lat  it  ba  alwayt  ramambsnol  that  ttw  eaac  ban  ijnnaid  pn>*id«  ealy  for  a 
fracUon  «xMtdi«g  ik>  tuaittj  of  the  tatia  ;  for  tha  esniitlttaa  adMlt  at  oaca  tbat  tba 
■■|*MUitatiiiM  tt  fnctiMU.  Um  Ibui »  (Boiaty,  U  nucooatitvtioDal ;  bccaoin,  ihouU  a 
Bcnbar  be  aUomd  to  •  Sul*  hraotik  a  frautiun,  it  would  be  owtain  that  hit  repnauk- 
latloM  would  not  b*  ao  mbt  bcr  euct  riglit  u  it  «u  before.  Bnl  tbo  allavBBca  of  a 
Utmbot  ht  a  nwiar  baclion  ii  b  direct  approximation  towanla  JwliM  and  aqnality. 
Thore  Bpi^an  to  Um  OMnmllUa  t«  W  n»t)iLiig,  aithar  In  tba  latUr  «r  tlu  aplril  of  tba 
OautfOitlon,  ofipowd  to  anch  a  ntaik  «(  ^ipaniuunanl.  On  Uie  oontnuj,  it  Bmnia 
•ntfnljr  omtfattiit  with  tht  thjt  wluMt  wbidi  Ibe  Oooalitvtua  oMtanplatod,  and  wdl 
oalonlMad  1«  aeeoaptirii  it.  The  a^MCBt  mmnonlr  ujfcd  agunM  It  ii^  that  it  ia 
■lowaiy  (0  Bpply  mmt  on*  oaanmoa  dlvlwr,  and  l«  aUda  bjr  it*  naultfc 

"Itbf  tUiitbe  ■cant  Unrt  tiun  mvi  be  aoae  oemBon  rale. or wnw  m«aaiiH^ 
apfdieabk,  and  applied  iBpartlBll]rl»aUtlM8tatca.  it  uqoilattuB.  Bat,iribat  >Uch 
Ii  btandHl  ba,  that  tba  pppnlatioM  of  aack  8ibIb  muat  be  dindod  by  a  fliad  i»U»,  aad 
«U  NaalUngi  rnoitMw,  gMt  or  «n«II,  dkntpfdad,  thia  i*  bat  to  take  tea  gtulod  tba 
T«t7  thing  IB  rontraran;.  Tha  q««ali(ai  i«^  whathar  It  1m  auMnatltutlunal  to  inaka 
BpfooxiBiatiDa  to  oqnoUtjr  b;  allowing  rtprcMBtatina  for  Bajor  fiaotiona.  Tba  attnt- 
atira  «l  tUa  qMatkai  la  indaed  dcttiod ;  but  it  i*  n«t  diiprattd  bjr  Mfiag  that  wa  nnu< 
abadc  hj  tba  opaiation  of  diaWa*,  by  an  Muninod  ratio,  and  dim^gud  bw titttL  Tb 
_i|nwtIoa  alill  rrmaina  at  it  waa  bafon  ;  aail  It  U  Kill  to  be  ahown  what  tbne  ia  la  tba 
OoMtUMloa  wbioh  r^eda  a|ipn«fiBBliai  at  tha  nil#  of  *|>porti«nnMnt.  Bat  toppoaa 
H  be  Biiimuj  to  find  a  dnrfaw,  and  to  ahida  it*  rwrolta.  What  iaBdiTiawl  KM 
MMMHffljTB  alupb  amnbet.  It  majr  be  canpoaed  of  a  whole  nsmbcr  and  a  fraetwai : 
U  BWy  llaatf  b*  th*  rault  of  a  previoua  itooub  ;  it  nuy  b*  anything;  ia  idioit,  which 
(tediwn  acouMta  and  iinitiMM  diriika  ;  wbatarar  doa  thla  ii  a  ooMon  ni»,  a  eon- 
BN*  lUMdanl, ««,  if  liw  waid  b«  Laportant,  a  oonunoa  dirlaor.  Tba  oomaniUae  nlrr, 
on  tUa  fart  of  the  OMtt  to  nu«  obwnratiooi  by  Prafiwar  Dmb,  with  a  lahU,  bath  of 
vhfab  aaaaanpaay  thk  icfMrt. 

**  Aa  it  U  not  ii^irahabl*  that  opioioa  ha*  bora  a  gaod  dad  inHnamad  «n  Ala 
mibitel  by  what  laok  pboe  on  lb*  paMii^  oT  tha  flial  act  aaUng  aa  apportkatmral  of 
raptaamtatina  asmg  Iba  Staka,  tlM  MaiorfHaa  ham  asBminad  and  conaidarrd  that 
pnoadNiL  If  it  bo  in  pmat  to  the  |maent  oaaa.  it  iavntainty  natitW  lo  Tery  gnat 
wtlgbt  c  hot  tf  it  be  of  gaaidonabte  appliealioK,  the  text  of  the  ConMitntian,  aren  it 
It  tma  daabtfiil,  oovld  aot  b«  aiplaiMil  by  a  donbtful  ooaaQcntaiy.  In  tha  opinion 
«(  tba  eoouftUiM.  It  ia  only  MOMaaty  that  what  waa  mU  en  that  occaalau  ahould  b* 


610 


CONSTTTCTIOK  OF  THE  tJKITRD  STiTBS.  [BOOK  til. 


Dii  on«  side  to  cxorl  no  undoo  influenoe,  and  on  the  other  to  m- 
ini«  a  hostile  opjxMitiun.     It  relieves  the  executive  department 


iindtintomi  in  rooowliou  wiUi  tli*  ni^JMt-iiiaUcr  Uhtn  under  o«uid«rmtia«i  |  wkI  io 
onlcr  to  H«  what  that  ralgMt-inattcr  trMj  <n^  tbs  c<niuiiitt<«  tkuik  it  ittemmay  to 
Mate  ibotlly,  the  out. 

"The  two  hoiuti  of  CongraM  |iHMd  •  Ull,  •ftw  tlw  fini  Hittimntloa  el  tbn 
twiplf,  pTOTMIiifC  Tor  •  Hoctw  of  BejitMantaUns  which  iImmU  eondM  of  «iiir  hundivd 
kiid  Iwvuiy  mfialxn.  Tlie  bill  npretaed  no  rala  c«  iniMii>tc  b]r  which  tbrae  memton 
wvn*  ungned  to  tb«  MTcral  Stntn.  It  mtnljr  nid,  that  Xnr  Hanptbirt  ilioald  han 
firo  iiwinbcn^  Uauochiuotl*  ten.  *tid  to  on ;  gaing  tltrough  M  the  Statot,  mod  •sign- 
ing tho  wbole  nnnilwr  of  niia  hnn  Jrrd  uxl  twniit;^-  l^^Wi  h;  tb*  mutni,  iJian  ncwtlf 
idii-n,  It  kp|)eu«d  tliat  tli«  wliole  n^imtulaliTe  popolatiMi  i>t  ths  [Tnitiil  i)Ul«<  «« 
S,ai5,V!tO  :  aril  it  wiu  evidfntly  tlie  wUh  of  Congnw  to  male*  th>  Honta  M  munoniii* 
u  the  OvoititRtioD  would  lUoir.  But  th«  OraMitnlion  bM  nid  that  tbm  tboald  lut 
he  ntoie  than  one  tnember  Tor  crcrr  thitt;  thoniaiul  futmm.  m*  prahiUtkni  mv, 
of  ooune^  to  be  ol»j«d ;  bat  di>l  Iha  Condlwtioo  meaii  that  do  flUtaa  ahaaU  bar! 
Rtore  than  oae  iiMiiihct  Tor  ainrir  thirty  thouaaad  perae**  I  er  did  it  oiil?  Meaa  tlui 
the  whole  Honw,  a*  eonpand  with  the  wliole  populatun  of  the  (Waited  Slatet^  ihattU 
Bot  contain  ntore  than  one  numiba  for  every  thirty  thoiuiiiil  pcMMu  I  If  thia  lot 
w«re  tho  me  conatrncttoD,  then  the  HU,  in  that  particulu,  waa  rinhl  ;  IT  the  fine 
w«Te  the  tne  coaatnielioa  then  it  wat  wrong ;  boeaoa*  •«  aaany  »f«ib*n  could  not 
be  aotgnad  to  the  Statea  without  priog  to  aoma  of  Uien  more  nenben  tfaatn 
for  every  tUrtj  thoMand.  !■  fact,  tbe  bill  did  pntpjee  to  do  tkit  in  ngafd  to  aat 
Slatta. 

"IVaidnit  Waahin^n  ado^Ked  th«l  coMtraetiaM  of  tke  Ogoatitstiaai  which  ap 
plitd  ita  prohihttion  to  eaeh  3tst«  tndiridaally.  Ha  (bonght  that  no  StaU  cou 
conatiutliaaBlly,  icetdn  nan  thut  odo  member  for  every  thirty  thonawd  of  btr  ' 
|iopiiUUoii.  Oh  thin,  lharGf>>r«,  hia  main  objactlon  to  the  bill  wa*  foiiaded.  Tlial 
olgection  he  utiiti^ii  in  thew  worda :  — 

"'Tbo  Cgtutitution  hu  nUo  |i«>rid«l  that  the  nninber  of  lepfeamtitim  ■ball  i 
ozccfd  one  for  crei;  ihirty  thaoBiod ;  which  leitiktioii  i^  by  tho  eantcxt,  uid  bf3 
bit  aad  obrioiia  conatrnction,  to  be  applied  to  the  wpante  and  teapectlTo  Biiiiihx*  af 
the  Htatna  ;  and  the  bill  haa  allollnl  to  eight  of  the  8ul«a  RMeo  thaa  ena  for  atary 
thirtr  ihooMad.'  , 

"  It  te  now  iMoe«Mry  to  ace  what  there  waa  furtbor  oty'ectionabfc  in  tUa  bQL  THj 
runnber  of  one  hnadrel  and  twelve  tnemUta  waa  all  that  could  ha  divided  anood 
StaU*  willioiil  giving  to  aome  of  them  mote  than  one  mtmher  for  tlilrly  tliounnd  in* 
haliilaaU.  Thetefora,  haviag  alletlad  theae  one  hnadred  aad  twfln^,  tlx-n-  etiU  re- 
mained right  cf  the  one  hmdrad  and  twenty  t*  W  aMJgjMd  ;  and  Ihcw  ei^t  the  biUi 
aaigned  to  the  Statea  haviig  the  laigeat  fnctioaa.  Some  of  theu  fnriioaa 
larm  and  aene  were  inaalL  No  regard  ma  |md  to  fiictio**  over  a  Moioiy  of  ibf 
ntle^  any  nunre  than  to  CractloM  under  U.  ^un  vaa  ne  mla  laid  down,  atatiiig  «lut 
fnu^ona  ahonld  cMlde  the  Stttca,  to  whoa  th^  ml|ht  happen  to  hll,  or  in  wh 
popalatlen  thay  Might  ha{ipM  to  ha  fovnd,  to  a  itfevniilallve  therrfor.  Tbe  aaaiga-l 
ment  wu  not  nude  on  tho  prindpl*  Ib^t  aaeh  State  alte«U  hare  a  Meaber  for  a  frac- 
tion greater  than  half  the  ratki ;  or  that  all  the  Rtatea  ahonld  have  a  membsr  for  4. 
freetion,  in  all  oaaea  where  tbe  allowaikcfl  of  tneli  raamber  wonU  hring  her  rrfir 
tion  nrarar  to  fta  exact  projwetion  than  ita  diaallowanae.  Tttaw  wu  no  oama 
nieamre  or  eewitteai  rnle  adopted,  but  the  •wgimiont  wat  nkaiiar  of  arbUmy 


CB.  IX.] 


BQWF.  OP  BETRBSENTATirea. 


€U 


from  alt  the  emhan-awtnit-nts  of  o]>po8iDj;  tlic  pofHilnr  will;  and 
the  timiAv  from  ull  tlio  irritatiou  of  nut  consultiug  tho  cabinet 
w  illicit. 

§  G88.   The  other  power,  the  tole  power  of  impeachment,  has 
a  far  widvr  suupo  and  operation.     Aa  iuipcachmvut,  as  dvHcribcd 


N 


«I*I(oil.  A  inumbH-  wm  ■llmrfd  (o  New  nantptluK  for  cmuDplv,  tor  a  fractioD  of  liM 
tiian  Mid  half  llie  ntio,  tliiu  placing  h(^c  nprawnUIlan  (urtlwr  froiu  htr  sx»d  pro- 
porUon  tlMS  it  vm  withont  tuch  aiUitMiial  mnnWr ;  «hit«  *  DNiibn-  teas  reroiol  to 
Gtoigk,  wboM  miB  elMtly  reMnililwl  tbal  of  New  Uunialun'.  bgth  having  what 
wcTB  t]iau)tht  laigt  fracttoiu.  bnt  both  ttiU  nndar  *  mowtr  of  tho  ratio.  bd4  dbtla- 
guUlnad  from  tuli  oiImt  «oi]r  (7-  •  tvtj  «li^  diRcrcaeo  of  abaoluM  tiuBibwt,  Tlio 
coninltiei  bare  alnaily  fuUf  nipwtj  their  cplBlon  on  toA  a  modv  oT  atipor- 
tionnwnl. 

"  In  trgard  to  Uii*  cbnclM  of  the  bill,  Prcaident  Wiu>biii](toB  wid  :  •  Tb*  Coiuti- 
tntion  lua  |>T«*ortbKl  tLat  rrprtacntatiTBa  ahall  bo  a]iporUon(ul  ainong;  tlii  aortnl 
StatM  •oconling  to  their  twptctire  BBinbcM  ;  and  th*r«  i»  no  oiiv  pruportirai,  or  di. 
*iior,  wfaiih,  applied  to  iha  rMjMctlT*  Duinbcn  of  the  8tat«a;  will  jrield  the  nnnbar 
•nd  allotnicnt  of  nfotHntatlva*  pTOpooal  by  th«  bill.' 

"  Tlii*  WM  all  Diiilonblcdijr  tint,  and  wai,  in  tlic  jid)[inciit  of  iha  a»>■nilt•^  a 
deviaiva  olgsctioa  ^ainit  tlie  UIL  It  b  ncvcnlii-lnM  10  bu  abvrrtd,  that  thr  otLvc 
(dyeetlon  complctclj  cflvrrnl  tlii>  whole  ([ronnd.  Tlivra  rauld,  in  tkal  bill  bo  no  allow- 
■no*  for  a  fnu'tion,  grvaX  or  wnnW  :  bocatiM  Coiif^raa  had  lolcm  for  the  ratio  tbo  lowMt 
munbcr  alluwol  by  the  Conitituiion,  vix.,  thirty  thotuand.  Whatarar  fnction  a 
Stale  Mi|[hl  baVD  Wm  than  that  ratio,  no  moiahcr  <uald  Iw  altovod  Gw  it.  It  is 
■earotly  naewiiy  tn  obaerrv  that  no  luek  •t^vction  apptica  to  (he  aixadMMit  new 
propOMd.  Va  State,  ahould  the  amrndmcait  ptvnjl,  will  hare  a  gnater  KaMber  ot 
mtmben  than  mtr  tar  rvnrj  thirty  thoiuMnd  ;  nor  b  it  likrty  that  that  obJ««tiaD 
will  eTCT  again  o-r%r.  Tlio  whoU  tarre  at  Uio  proeadant,  whalerar  il  bo.  In  it*  apfji- 
ealJoR  to  the  pramt  uae,  a  drawn  from  th*  other  oljKiioii.  Akd  what  is  the  true 
Import  of  that  ofcjcction  t  noun  It  mean  anything  more  than  that  tho  apportk<iiiiMit 
wu  not  mad*  on  a  oomoioii  rule  or  prlodplc,  applicable  and  applied  alike  to  all  the 
StaLaar 

"  Pmidrat  VaUiington'R  word*  aw,  •  There  i*  no  one  proportion  or  dirltor,  which, 
applkd  to  the  rupectiTo  numbtra  of  Ibc  Slatea,  will  yMd  the  number  and  oIlotMcat 
of  Hpimntatiit*  propoanl  hj  th#  bilL* 

"  If,  tlmi.  ho  oonid  hare  found  a  ooanmMi  pi«pnrtloD,  it  wonld  have  rcnwrad  Ihb 
otifaotioa.  lie  reqiiind  a  preportion,  or  diTlaor.  Thcao  wiirlii  hn  *>'ir|rnlly  uaM  aa 
explanatory  nf  eath  olhtr.  Be  moant  by  dintor,  thenrror*^  uo  mora  than  by  pnp«r- 
Hon.  Wlut  ho  asivht  WMt,  M«i*  coumoa  asd  aqnal  nU  by  whitli  the  allotment  had 
been  mad*  amnnff  the  wetml  8(«t«« ;  be  did  not  And  ndi  <oninMin  rale  ;  aad  on  that 
ItMnnd  he  Ihnught  the  bill  al(jectUnaU«. 

"In  the  optniao  of  the  wwilHe«v  no  inch  olgettiai  apptSta  to  tho  amendment 
teraiBiiMnded  by  them,  ^at  anandmrnt  fcirea  a  rule,  plain,  dvpte,  jnit,  nnitorm, 
and  tt  mivmal  appUrallon.  Ttw  rale  haa  been  fteqnentty  atalod.  It  may  be  dearly 
expmaed  in  *4tli>r  of  two  way*.  Tj*t  the  mk  b»,  thai  the  wM*  number  of  the  [•»• 
pBatd  Hontr  (hall  be  apportioned  amoag  ih*  arrerat  SWlrt  aoeHnlinft  to  their  raipao- 
live  niimbrn.  giring  to  Mch  State  that  nsmbm-  «f  iMaben  whkh  coon*  n*M«a  to 
her  rxnct  malhemalkal  fu^  «r  prapottiaa  ;  or,  M  tlM  ralo  ht,  that  the  p^pukHaa  << 


612 


coxanTCTioN  op  the  dnited  states.         [book  IB. 


in  Uie  commoa  law  of  Eiigiand,  ia  a  presentment  by  the  House  of 
CcnunoDM,  tbe  most  eoleuui  f^rainl  inquest  of  the  whole  kin^otn, 

Mch  State  ihaU  be  diridad  bjr  •  eominoa  diriaor,  md  tbit,  in  ■ddilion  to  tb*  itinnt«r 
of  in*mb«*«  maliuig  tma  nch  divudiM,  a  mcmkr  ahatl  tw  allovad  to  meb  StaM 
wboM  rimotioti  excMd*  a  niobt;  of  Um  dlriatr 

"  SilbtT  of  ibftt  is,  it  Btean  to  the  MMnHtM^  a  fair  and  |nft  nilr,  at{>*1>l«  ot  uii- 
fatm  a{>fiU<«iMii,  and  opentiuj  vHb  entin  impHtUUt]:.  Tlinv  i>  no  waiit  of  ■  con- 
man  praportlon  a*  a  Moamoa  diruor  ;  tlwre  U  ■othing  kA  to  nrbitnrr  diBcrctioa.  If 
th«  rula,  (n  ritlwr  of  Axm  tonat,  ht  adoptad,  it  can  never  be  danlitfnl  how  tmrj 
nnnliFr  oT  any  propnMd  nnnVr  for  a  noiuo  of  Btfffmentaliva*  ought  to  ba  aaalgned. 
nothing  win  be  Irfl  in  thi-  diacrvliou  of  Congraga ;  tb*  ri)tht  <f  Moh  State  will  W  a 
mtthematinl  right,  oioily  aBceTtaincd.  about  wbiuh  tbtre  on  be  nritlier  iloubt 
dlfllcnlty  i  and,  in  tbe  apfJioatlaD  of  tb«  rale,  Ibm  will  be  no  tooni  for  prcferono^l 
panUtitf,  or  liynallc*.  In  any  ca**,  ta  all  time  U>  rome  It  will  do  all  that  koman 
meant  can  do,  to  kltot  t«  OTcvy  State  in  ihe  ITiilon  its  pro[wr  and  JiM  propottkii  of 
reprnentatire  pown.  And  it  it  bwaoM  of  tlii<  ita  caiiabilily  of  (octtsnl  ajipUcatSn^ 
aa  wiJt  aa  bocanae  of  it*  impartialitjr  ud  jintic*^  tbu  tbr  ooounittee  an  sanMat  to 
noomDimdlati  Ita  adopthm  to  Oongiwa.  If  It  diaU  ho  adofitod.  tb«y  tKUevo  It  wiD 
nmore  a  cauie  of  ancatiiieti  a&d  ditattfafactlon  neurring,  or  UaUe  10  ntar,  wUk 
*Ttij  new  tenioi,  and  pUc«  tbe  right*  of  the  Stalea,  is  thi*  nspeot.  OM  a  lixcd  taii^ 
of  whidi  none  an  wltb  naaon  (omplain.  It  is  true,  that  tbtnt  my  be  Mine  nomben 
aanmed  for  tha  cumimtltlcai  of  the  Iloaw  nf  RopmrBtatlTat,  to  wbtch,  {f  tho  nie 
w«r«  applM,  ih«  nniU  might  give  a  nit^niber  tu  lb*  Hom*  mora  Ibui  wu  propowd. 
Bat  it  <ril|  bR  alintyB  eagy  to  comet  this,  by  allvring  tbo  ptofoaed  ttunibcr  t^  aiUiag 
one  to  it  oi  lAking  one  front  it;  ao  that  thia  can  b«  cooaidarad  no  otjoctioin  to  tb*  i 

"Tbc  committer,  in  Donckiioii,  cannot  adrntl  that  tt  I*  fuftcbet  reMon  for  lO-^ 
Jecting  thI*  mud*  of  appottloomunt,  thai  a  diifrrent  pracni  baa  bentofore  pnTailtd, 
Th«  truth  ia,  the  errore  and  ioei|Ualitiei  of  that  procM*  <rere  it  ftnt  not  obvioM 
•tortlin^     Bui  Ui«y  hare  gone  on  incrtaang ;  they  are  gmitly  augmented  and 
mvlated  ereiy  new  tcniui ;  and  it  u  of  tho  very  natura  of  tbt  proona  Itarif,  tbal  lt> ' 
uujost  wamlw  iimM  rtow  grrnttT  and  urreiter  in  profufftton  M  the  ]wpul*tia«i  of  tbe 
country  enUrj!**.     What  wiu  oliji^louahla,  though  tulonble  yealenlay,  baoamaa  in 
toJcrahIo  lO'moTTow.      A  (^haiigp,  tho  oommitto*  arc  penuadcd,  mint  own*^  or 
whole  jut  balance  and  proportion  oi  repreaentatirc  pocccr  amoNg  tho  Staiiti  will  b* 
dlalnthtd  ani!  brolun  np." 

Mr.  RvnHI  aUo  mad*  a  Tary  able  ipMcb  o«  tbt  tame  nitjwt.  in  vhkh  he 
some  additional  aigumontt  wttb  p«at  tore*  on  tb«  camo  aide.  See  b'u  printed 
of  17th  Uay.  ]$33.  (4 


Is)  Although  tbt*  report  did  nAt  ba- 
coma  the  hasia  of  tho  apportionment  In 
ISS^  yet  It  WM  actually  adot>t«l  aa  tb* 
haaia,  in  tbr  ai^pottlonment  in  }gll,  under 
tho  new  cenima.  By  the  Act  of  iM  oi 
JoBik  1S43,  the  ratio  vai  adoptnl  of 
70,<M,  and  «*efa  8UU  waa  doekMl  an- 
titkd  to  IB  Muy  wffaawHattwa  a>  it* 
ledunJ  fOfnlatMOi  wuutd  give  diriJcd  bj 
that  MBbMr.  and  abo  to  one  addittanal 
member  «pon  lb*  rtaaining  baction,  if 


It*  popvlation  aMaaded  balf  of  tbal  i 
bar.    Ertry  dacida  bow  brings  •  i 
in  the  bMia  of  ntnoMntatioai,  and 
tu  aoNW  inmaM  in  the  nsmbcr  ot  i 
•enlattvau    But  wilbal  aama  lMai|Ualily 
swBii  uaaroldaM* ;  for  pofmUMoo  b  41  a  ^ 
ataMUtlU  ia  wome  Suioa,  whilt  ia 
tbM»  U  vait  incwaai  in  the  ooor**  of  i 
yaan,  aud  that  incmte  ha*  m  npiiiwi 
bttioa. 


BOUSB  OP  BEPBESENTATITIB. 


S18 


I 
I 


I 


to  the  TtouBO  of  Lords,  tho  moat  higli  and  Bupronao  court  of  erim- 
inal  jurisdiction  uf  Ihu  kin)nloui.'  Tlioarticlej  of  impoachment 
are  a  kind  of  bill  of  Indititrnviit  found  by  th«  Commons,  and  tried 
by  tliv  Lord»,  wbo  urc.  in  cones  of  misdoiucHiiord.  considorrd,  not 
only  HB  their  own  |>ecra,  but  as  Uio  pecr»  of  the  wltolu  nation.* 
The  origin  and  liistorjr  of  th«  jurisdiction  of  Parliament,  in  <»kMs 
of  i iiiiK'achinont,  ftre  summarily  ^tcd  by  lilr.  W(M>de»on:  but 
little  can  bo  gatlkered  tberefrotn  which  is  now  of  umcli  interest, 
and,  like  most  other  legal  antiquities,  tliey  arc  inrolvcd  in 
great  obscurity.'  To  what  claRMit  of  offender*  Diis  apidie-s,  will 
be  more  projterly  an  in<]Uiry  hereafter.  In  the  Con»titutioD  of 
the  United  States,  the  House  oi  Rcprosentatives  exerciftcs  the 
functionn  of  the  Iluuse  of  Commons  in  rej^rd  to  impcachmenta ; 
and  the  Senate  (as  ve  ahall  hereafter  see)  the  functions  of  the 
House  of  Lords  in  relation  to  the  trial  of  the  party  aecuaed.  The 
principles  of  the  common  law,  so  far  aa  the  jurisdiction  is  to  be 
exercised,  are  deemed  of  primary  obligation  and  government 
The  object  of  pruKVCutions  of  this  sort  in  both  countries  is  to 
high  and  potent  offenders,  snch  as  might  bo  presumed  to 
eMapc  punishmi'nt  In  the  ordinary  tribunals,  either  from  their 
own  exlraurdinury  influence,  or  from  the  imperfect  organizatioa 
and  powers  of  those  tribunals.*  These  proaecutiona  are,  there- 
fore, conducted  by  the  roprcsontatitea  erf  the  nation,  in  their  pub- 
lic capacity,  in  the  face  of  the  nation  and  upon  a  responsibility 
which  is  at  once  felt  and  reverenced  by  the  whole  community.* 
The  notoriety  of  the  proceedings,  the  solemn  manner  in  whicli 
they  are  conducted,  the  deep  extent  to  wliieh  they  affect  the  rep- 
utations of  the  accused,  the  ignominy  of  a  conviction  which  is  to 
be  known  through  all  time,  and  the  glory  of  an  acquittal  which 
BBcertaliu  and  confirms  innocence,  — these  are  all  calculated  to 
produce  a  vivid  and  lasting  interest  In  the  public  mind,  and  to 
gi\-«  to  such  proaiecutions,  when  necessary,  a  vast  importanoe, 
both  as  a  check  to  crime  and  an  incitement  to  virtue^ 

§  689.    This  subject  will  be  resumed  hereafter,  when  the  other 
provisions  of  the  Constitution,  in  regard  to  impeachments,  oome 


■  a  HaI*'»  pi.  Cr.  150 :  t  Blade  Conm.  U«  ;  1  WOmm'i  Uv  Leot.  !«$.  IM. 

*  i  BiMk.  OemM.  WO.  *  2  Woodeun'*  Lcct  40.  p.  fiM,  Ac 

*  4  Bbck.  CoMin.  SSD  i  Bt«l«  «a  the  Coiwtitatian,  eh.  S2,  pp.  110,  211 ;  3  Woodo- 
•m'i  l.c«t  40,  p.  S9t,  lu. 

*  RawU  on  lh«  ConMitntioii,  di.  S^  p.  Ut. 
VOL.  I.  —  M 


614  COMSTITDTIOH  OF  TBB  UNITED  STATSB.  [BOOK  m. 

under  review.  It  does  not  appear  that  tlte  vesting  (A  the  pover 
of  impeachment  in  tlie  House  of  Bepreeentatives  was  deemed  a 
matter  of  serious  doubt  or  question,  either  in  the  convention  or 
vith  the  people. '  If  the  true  spirit  of  the  Constitution  is  con- 
sulted, it  would  seem  difficult  to  arrive  at  any  other  conclosion 
than  of  its  fitness.  It  is  designed  as  a  method  of  national  in- 
qurat  into  the  conduct  of  public  men.  If  such  is  the  design,  who 
can  so  properly  be  the  inquisitors  for  the  nation  as  the  represen- 
tatives of  the  people  themselves  f  They  must  be  presumed  to  be 
watchful  of  the  interests,  alive  to  the  sympathies,  and  ready  to 
redress  the  grievances,  of  the  people.  If  it  is  made  their  duty  to 
bring  official  delinquents  to  justice,  they  can  scarcely  fall  of  per- 
forming It  without  public  denunciation  and  political  desertion  on 
the  part  of  their  constituents. 

>  Jouinal  of  Convoition,  pp.  69, 121, 1S7,  225,  S26,  ISS;  8  EUiot't  DabtlM^  4^ 
41,  45,  48. 


CB.  X.] 


TUB  SKNATB. 


616 


CHAPTER  X. 


THB  8EKATB. 

f  vBO.  The  third  sootioo  of  the  first  article  relatca  to  the  or- 
guiiuitioQ  and  powers  of  the  Senate. 

§  691.  In  coiuiderliig  tlie  orgauization  of  the  Senate,  oiir  in- 
qulrlM  naturally  lead  its  to  aoccrtaiu,  Gr»t>  the  nature  of  the 
repreeentatioQ  and  vote  of  the  8tat«»  therein;  ticcundl)-,  the  mode 
ctf  appuintment;  thirdly,  the  number  of  lh<!  Bcimtura;  fourthly, 
their  tf-Tia  of  service;  and,  fifthly,  their  qualifications. 

§  692.  The  first  clauae  of  the  third  section  is  in  tlie  following 
words :  "  The  Senate  of  the  United  States  shall  be  composed  erf 
two  senators  from  each  State,  chonen  by  the  lef^iaUture  therotrf 
for  six  years;  and  each  senator  shall  have  one  vote." 

§  693.  In  the  first  place,  the  nature  of  the  representation  and 
vote  in  the  Senate.  Each  State  is  entitled  to  two  senators ;  and 
each  senator  is  entitled  to  one  vote.  This,  of  course,  involves 
in  the  very  constitution  of  this  branch  of  Uie  leirislature  a  perfect 
equality  uinong  all  the  States,  without  any  reference  to  their  re- 
spective siie,  population,  wealth,  or  power.  In  tliis  respect 
there  is  a  marked  contrast  between  the  Senate  and  the  House  of 
Repfescnlative-s.  In  the  latter,  there  is  a  repi-esentation  of  the 
people  according  to  the  relative  population  of  each  State  upon  a 
given  basis;  in  the  former,  each  State  in  its  political  capacity  ii 
represented  uyion  a  footing;  of  perfect  equality,  like  a  congress  of 
sovereigns  or  amhaiuiadors,  or  like  an  anscmbly  of  peers.  The 
only  difference  between  it  and  the  continental  Congress  under 
the  old  confederation  in,  that  in  thi»  the  vote  was  by  i^tates;  in 
the  Senate  each  senator  has  a  single  vote.  So  that,  though  they 
represent  States,  they  vote  as  individuals.  Tlie  vote  of  the  Sen- 
ate thus  may,  and  often  docs,  iKcomc  a  mixed  vote,  embracing  a 
part  of  the  senators  from  some  of  the  Status  on  one  side,  and  an- 
other  |>art  on  the  other. 

§  *}94.  It  is  obvious  that  this  arrangement  could  only  arise 
from  a  compromise  between  lndo|<endent  States;  and  it  must 
have  been  less  the  result  of  theory  tlian  "  of  a  spirit  of  amity, 


516 


COKSTITUnON  OF  THE  UNtTED  STkttB.  [BOOK  lU. 


and  of  mutiiAl  deference  and  concession,  which  the  peculiarity  of 
tlie  situation  of  (he  United  States  rendered  Indispensable."'  It 
coitHtltiit«d  one  of  the  great  tttniggles  l>etween  tlie  large  and  the 
small  States,  which  was  coogtantlj'  renewed  m  the  convention, 
and  impeded  it  In  ererr  step  of  its  progress  in  the  formation  of 
the  Constitution.*  The  utruggle  applied  to  the  organization  of 
each  branch  of  the  leppslature.  The  small  States  inslnted  u|Hni 
an  equality  of  vote  and  roprcaentation  In  each  branch ;  and  the 
lar^e  Htates  upon  a  vote  in  proportion  to  tbelr  relative  Impia^ 
tance  and  population.  Upon  thia  vital  question  there  waa  so 
near  a  Imlance  of  the  States  that  a  Union  in  anr  form  uf  ij^rem- 
ntent  which  provided  either  for  a  perfect  equality  or  Ineqaallty 
of  the  States  In  both  branches  of  the  IcBislature  became  utterly 
hopeless.*  If  the  basis  of  the  Senate  was  an  i-quulity  of  reprO' 
scntatiou,  the  basis  of  the  House  must  be  in  proportion  to  the 
reliitin:  population  uf  the  States.*  A  vompromUe  Vi'aa,  therefor^ 
iDdispcosable,  or  tliv  convi-ntlon  must  be  dissolved.  Th«  anuU 
States  at  length  yielded  th«  point  as  to  an  equality  ot  represen* 
talion  In  the  Kouse,  and  acceded  to  a  p-pn-m-ntation  proportion- 
ate to  the  federal  numbers.  But  they  Insitttcd  upon  on  equality  In 
tlie  .Senate  To  this  the  large  StatL-s  wer«  onwiUinx  to  assent] 
and  for  a  time  the  States  wore,  on  this  iwint,  equally  divided* 
Finally,  the  subject  was  referred  to  a  eommittoc,  who  reported  a 
scheme  which  became.,  with  some  aineudiuenta,  the  basis  td  thfl 
r^MPesentatlon  as  It  now  stands.* 

§  S9;>.  The  reasoning  by  which  each  party  In  the  convenHoo 
supported  its  own  project  naturally  grew  out  of  the  relative  sit- 
uation and  inte-reata  of  their  respective  States.  On  the  aide  of 
the  small  States  It  waa  urged  that  the  gencrttl  govemmpnt  ought 
to  be  )iar11y  federal  and  partly  national.  In  order  to  secure  a  just 
balance  of  power  and  sovereignty  and  ioRuenoe  amonf^  the  Ststoa. 

)  UMMef  Ui*Cuif«iitlaa.  ITtit  of  Sept.  I'tJi  1  KMt  CiMmK.  (11,  ff.,  Zlfliirt. 

•  S  Pilkin-*  HM.  tXK  S4S,  ti7.  US  -,  Yttnt  lUnnta,  I  EtlMti  tttimtm.  <8,  74, 

n,a,»*.9f>,*i.n.  i<l  w.  loo^  in t  u.  lor,  itciiStoiM,  u.  12s,  i9(i,u7) 

1  EUiat'a  VOmim,  14. 

■  9PltUn^llut.ns.lU;  Ja«nnl<r  teOMnvUott.  113. 

■  Oa  tkk  nhfMt  M*  tb*  JmrmI  of  Aa  CtaiMtioo.  ill,  ItX  ISS  to  US.  Itl. 
ITS.  ISO.  SS5,  as^  197,  S38 :  Tiu*-*  MiBrtu^  «  EOM't  Uhita,  ban  «  to  m. 

*  S  Ftdcin'*  Hh*U5ti»nMl  •rOawMCUa.M  Jsly.  n>-  IK  US;  Id.  ]«S, 
175,  irs,  IM.tlli  V*Mi-*  K)mrt«,4  HIM-*  DAMm.  lU  to  IST:  1  Am»t.  Mor 

■n,379. 

■  1  KUM**  ttUtm,  «T  I  Jousd  tt  CMtwiin.  IR. 


THE  B£NATB. 


617 


I 


This  )8  the  only  means  to  prvsen'i-  small  communities,  when  M> 
sociating  with  lui^r,  from  being  overwhelmed  and  anoihilatod. 
The  large  t<tutuH,  under  uther  circwnetuaoes^  would  naturally  pur- 
sue their  own  luteresto,  and  by  comhiuatiuns  usurji  tlie  preroga- 
tives, or  disregard  Uic  rights,  (A  tbo  smaller.  Ilitherto  all  the 
^tatoa  hud  held  a  footing  of  oqtinlity)  and  no  one  would  now  be 
willing  to  surrender  It.  Tlio  course  now  proposed  would  allay 
jealousies  and  produce  tnuiqulllity,  Any  otlier  would  only  per- 
petuntc  dincontents  and  lead  to  disimiua  There  never  was  a 
confederacy  formed  where  an  equality  of  voice  wna  not  a  funda- 
mental principle.  It  would  be  a  uovcl  tliinf;  in  polities,  in  such 
cuHeit,  to  permit  the  few  to  control  the  many.  The  large  Stntcs, 
apoti  (he  present  plan,  have  a  full  security.  Tlie  small  Htulcs 
must  poesesa  the  jiower  of  self-defence,  or  they  aru  ruined. 

$  696.  On  the  other  hand,  it  was  urged  that  to  give  an  equal* 
ity  of  vote  to  all  the  ^States  was  adopting  a  principle  of  gross  in- 
juatico  and  inequality.  It  Is  not  tnie  that  all  confederaclejt  luive 
been  founded  upon  the  principle  of  equality.  It  was  not  ko  In 
the  Lyciun  confederacy.  Experience  has  shown  that  the  old 
confederation  is  radically  defective,  and  a  national  government 
is  indispensable.  The  present  plan  will  defeat  that  object 
Suppose  the  first  branch  grants  money;  the  otlter  branch  (the 
Senate)  might,  from  mere  State  views,  countei'act  IL  lu  Con- 
gress, the  single  State  of  Delaware  prevented  an  embargo  at  the 
time  when  all  the  other  States  thought  it  alisolutety  necessary 
for  the  su}iport  of  tlic  army.  In  short,  the  Senate  will  have  the 
power  by  its  negative  of  defeating  all  laws.  If  this  plan  pre- 
vails, seven  States  will  control  the  whole;  and  yet  these  seven 
States  are,  In  point  of  population  and  strength,  leM  than  one- 
third  of  tlie  Union.  So  that  two-thirds  are  eom|H>Ilablc  to  yield 
to  one-third.  There  is  no  dangi-r  to  the  small  Status  from  the 
combination  of  the  large  ones.  A  Hvalry,  rather  than  a  confed- 
eracy, will  exist  among  them.  There  can  bv  no  monarchy;  and 
an  aristocracy  is  more  liltely  to  arise  from  a  combination  of  the 
small  States.  There  ar*^'  two  kinds  of  l>ad  governments;  Uie  one 
which  does  too  much,  and  is  therefore  oppressive,  and  the  otlier 
whIcJi  doc«  too  Utile,  and  is  tlierefore  weak.  Tlie  present  plui 
will  fasten  the  latter  upon  the  country.  The  only  roosonaitte 
principle  on  which  to  found  a  general  government  is,  that  the 
decision  shall  be  by  R  majority  of  tnembera,  and  not  of  States. 


518 


COSSTTTUnOH  OP  THE  OSITED  STATES.  [BOOK  HI. 


No  adrantAge  can  poBsiblf  be  proposed  br  the  large  States  by 
swalloviitg  up  the  sninUcr.  Tho  like  fear  cxlstvd  in  Scotland 
at  the  time  of  the  union  wKli  England;  but  U  has  turned  oat  tn 
bo  wholly  vithout  fuundntiun.  Upon  th«  present  plan,  the 
smatlor  Statc-s  ma}-  awallow  up  the  larger.  It  was  added  hy  oae 
most  distinguished  Ht»t«smaD '  (a)  (what  h«a  hitherto  proTcd  pro- 
pheticuHy  too  tnie),  lh»t  the  danger  was  not  between  the  aBull 
and  the  large  States,  "The  great  danger  to  our  general  gowm- 
mciit  is,  the  great  southern  and  northern  interests  of  this  cant 
nent  Iteiu;;  opposed  to  each  other.  Look  to  the  rotes  In  Ooi 
and  most  of  them  stand  divided  by  the  geography  of  the  coantiy, 
not  according  to  the  siie  of  the  Stattw."* 

§  697.  Wliatever  may  now  bo  thought  of  the  reasoning  of  the 
contending  parties,  no  person  who  possesses  a  sincere  Iot«  of 
cotmtry,  and  wUhen  for  the  permanent  union  of  the  States,  can 
doubt  that  the  compromise  actually  made  was  well  foanded  tn 
policy,  and  may  now  be  fully  vindicated  upon  the  hi^est  princi- 
plefl  of  political  wisdoni,  and  the  true  nature  of  the  goremmeot 
which  was  intended  to  be  established. 

§  698.  It  may  not  be  unprofitable  to  revicir  a  few  of  the  gronnds 
upon  which  this  opinion  it)  hazarded.  In  the  first  place,  the  very 
structnre  of  the  general  government  C0fltemi)l8ted  one  partly  fed- 
eral and  partly  national.  It  not  only  recognised  the  exfstenoe  of 
the  State  goremmonts,  but  perpetuated  them,  leaving  them  in  the 
enjoyment  of  a  large  portion  of  the  rights  of  sovereignty,  anj 
giving  to  the  general  government  a  few  powers,  and  those  onlj 
which  were  necessary  for  national  purpnsra.  The  general  gov- 
ernment wim,  therefore,  npon  the  acknowledged  basis,  one  til 
limited  and  circumscribed  powers;  the  States  were  to  pcsseos'thB 
residuary  powers.  Admitting,  then,  that  tt  Is  right,  among  a 
people  thorou^ly  incorporated  into  one  nation,  that  every  di« 
trict  of  territory  ooghtto  have  a  proportional  share  of  the 
emment;  and  that  among  Independent  States,  bound  togetlnr  by 


<  Ui.  Midim. 

*  Thb  nittiiiu7  i*  ftfattrMM  princiiMtty  tnm  TUm'i  lOaorlM  <f  tkf  DvUtM,  i 
l.utber  Mutin'a  Utts  and  SpMvh,  Jnftiuf?  ST,  17BS.  Sr«  kUrtfn'i  Lnt«r  il 
eillM'*  IhiiM**,  1  W  65.  8»  TatM-i  HisalM  tn  t  Elliot'i  Dthtim.  68 ;  bU  74,  75. 
81.  S»  to  »S.  M  to  1091  107,  laa.  112  to  1S7  ;  S  Pitkin'i  Hi>t.  33S  to  MS.  8m  ite 
Tlu  rdknUM,  No.  S3. 

(«)  8m  >l*o  life  ind  WritUif*  of  Jtam  Inddl.  H.  SS«.  SSS. 


CH.  X.] 


TIIE  8RNATE. 


519 


»  simplv  lea^e,  tb^rc  ought,  on  tJio  other  hand,  to  be  an  equal 
ftharc  in  tliu  comiuuu  couui-iln,  whatever  luight  be  their  relative 
siw  or  Htrcngtli  (buth  of  which  propositions  nre  not  easily  con* 
trovertMl),  it  would  follow  thnt  a  eompound  republic,  partaking 
of  the  ehnracter  of  each,  ought  to  Iw  founded  on  a  mixture  of 
prnportional  and  of  equal  reprosotitation. '  The  legislative  power» 
being  tliat  nhich  i9  predominant  in  all  govemnienla,  ought  to  b«, 
above  all,  of  this  character ;  because  there  can  be  no  securitjr  for 
the  ^neral  government  or  tlie  ^tato  goTernmeiita,  withnut  an 
adcquau^  rcprcflentatioii,  and  an  adequate  check  of,cach  in  the 
functions  of  legislation.  Whatever  basis,  therefore,  is  assumed 
for  oiip  brunch  of  the  legislature,  the  antagonist  basis  should  bo 
UHSumed  for  tlie  other.  If  the  flouse  is  to  bo  proportional  to  the 
relative  size  and  wealth  and  pop«lati<Hi  of  the  States,  the  Senate 
(iliuiild  be  liscd  upon  an  aliaolute  equality  as  the  rcprcaentative  of 
Htute  sovereignty.  There  is  so  much  reason  and  justice  and  ae- 
oority  in  such  a  course,  that  it  can  with  difficulty  be  overlooked 
by  tboflc  who  sincerely  consult  the  public  good,  without  being 
bioswMl  by  the  interests  or  prejudices  of  their  pveuUar  local  posi- 
tion. The  equal  vote  allowed  in  the  Senate  is,  in  this  view,  at 
once  a  constitutional  recognition  of  the  sovereignty  remaining 
in  the  States  and  an  instrument  for  the  preservation  of  it  It 
guards  thorn  against  {what  they  meant  to  resist,  as  improper)  a 
consolidation  of  the  States  into  one  simple  republic;^  and,  on  the 
other  hand,  the  wei^t  of  the  other  branch  counterbalancM  an 
undue  preponderance  of  State  interests,  tendin);  to  disunion. 

§  699.  Another  and  most  important  advantage  arising  from 
this  ingredient  is  the  great  difTereucc  which  it  creates  in  the 
elements  uf  the  two  branches  uf  the  legislature,  which  constitutes 
a  great  desideratum  in  every  practical  division  of  the  tegislatiro 
pi>wer."  In  fact,  this  division,  as  has  l>een  already  intimated,  is 
of  little  or  no  intrinsic  value,  unless  it  is  so  organized  that  each 
can  operate  as  a  real  check  npwi  undue  and  rash  legislation. 
11  each  branch  is  substantially  framed  upon  the  same  plan,  the 
ad\'antagPR  of  the  division  are  shadowy  and  imaginative,  — the 
Tisions  anti  speculations  of  the  brain,  and  not  the  waking  thoughts 


>  Tin  FedomUct.  Ko.  03  ;  2  Anar.  Umtaa.  S7«.  STS. 

■  The  Fxicralut.  Ki>.  ti  |  Itawfe  on  Oooftit.  34.  37 :  1  Rnit,  Cooun.  LcoL  11, 
FPl  110,  11] ;  9  Amor.  Mobmiii.  STS^  3*9 ;  1  Tackeft  Bluk.  Coum.  App.  IVS. 
*  2  WUwn'*  U«  Ltot.  118, 147,  KS. 


520 


CONSTITtmON  OP  TBS  UNITED  STATES.  [BOOK  IIL 


of  atateftmea  or  patriuU.  Xt  mujr  be  safclj-  owcrted  Uiat,  for  si) 
the  purposes  of  liberty  and  security,  of  stable  lam  and  of  aolid 
ioHtitutioiu,  of  porsoonl  righta  and  of  Uic  protection  of  prop- 
erty, a  sini^lu  branch  ia<]uitc  aa  good  a»  tvo,  if  Ihtur  cumpo«itioD 
is  the  itamv  and  their  spirita  luid  impnlsca  tho  Kumo.  Eacli  will 
act  aa  tliv  uthi'r  ddou;  iind  ejich  will  be  led  by  the  siudc  commoo 
Influouce  of  uinbilion  or  intrigue  or  piusion  to  tho  same  disregard 
of  tho  public  interests,  and  the  aame  indifference  to,  and  proa- 
tmtion  of,  private  rights.  It  will  only  bo  a  duplication  of  (he 
«vils  of  oppression  and  roshncsa,  with  a  duplieation  uf  ohstrac- 
tiona  to  «ffcctir«  rcdrcM.  In  this  i-icw,  the  organization  of  the 
Senate  beoomes  of  inmtlroable  value.  It  represents  tho  voice, 
not  of  a  district^  but  of  a  State ;  nut  of  one  State,  but  of  all ;  not 
of  the  interest  of  one  Stato,  but  of  all ;  not  of  the  chosen  porauita 
of  a  predominant  populution  in  ono  8tate,  but  of  all  tlic  puniuits 
in  all  the  States. 

§  TOO.  It  is  a  misfortune  incident  to  a  republican  govern- 
ment, (hoii^ti  in  a  loss  degree  th&n  to  other  govern menta,  that 
those  who  administer  it  may  forget  their  obligations  to  their  con- 
stttnenta,  and  prove  unfaithful  to  their  tni»t8.  lu  this  point  of 
view,  a  senate,  as  a  aecond  branch  of  legislative  power  distinct 
from,  and  dividing  power  with,  the  linit^  must  alwnys  operate  as 
a  salutary  check.  It  doubles  the  security  to  the  peopli>,  by  re- 
quiring the  concarrence  of  two  distinct  bodies  in  any  sdieme  of 
nanrpation  or  perfidy,  whore  otherwise  the  amliition  of  a  single 
itixly  would  Im)  sufficient.  The  improbability  of  sinister  ctunbi* 
nations  will  always  be  in  proportion  to  thu  dissimilarity  of  the 
genius  of  the  two  bodies:  and  then^'fore  ever}' circuuuttanco  con- 
aistcnl  with  harmgny  in  all  proper  measures,  which  points  oat  s 
distinct  organixation  of  tho  component  materials  of  each,  ia 
desirable.' 

§  701.  No  system  could,  in  this  respect,  be  more  admirably 
contrived  to  insure  due  deliberation  and  inquiry,  and  just  results 
in  all  matters  of  te^tslatioa,  Xo  law  or  resolution  can  be  paascd 
without  tlio  cuncurrence  first,  of  a  majority  of  tho  people,  and 
then  of  a  majority  of  the  States.  The  interest  and  passions  and 
prejudices  of  a  difltrict  are  thus  checked  by  the  inHnence  of  a 
whole  State;  Uie  like  intcrcata  and  passions  and  pri'^judices  of  a 
Stat<v  or  of  a  majority  of  the  Stntca,  are  met  and  controlled  by 
I  The  FoitMllst,  Xo.  SI 


CB.  X.] 


THE  SENATE. 


521 


tlie  Toioo  of  tbo  pooptc  of  the  n&tioo.'  It  tnav  be  tliougrht  that 
thin  complicHt«d  system  of  checks  may  operate,  in  some  in- 
stnnnit,  injuriously  as  wvll  as  bcnoliL-iiilly.  Itut  if  it  nhouM  oc* 
casionally  woric  unequally  or  injuriously,  its  general  operation 
will  b«  Balutary  Mid  usvfiil.*  The  disease  moat  incident  to  free 
t^voninicnts  5»  the  fucility  and  excess  of  lawmakini;;'  and 
while  it  nirver  can  be  tliu  permanent  interest  of  either  branch  to 
Interpoee  any  undue  restraint  ujton  the  exercise  of  all  fit  lefiisls- 
tion,  a  pyyA  law  had  better  occasionally  fail,  rather  than  bad 
laws  be  miittipliod  witli  a  hcodlesa  and  mischievous  frequency. 
Even  reforms,  to  be  safe,  must,  in  general,  be  slow;  and  there 
con  be  little  dnngvr  that  public  opinion  will  not  sufTiciently 
stimulate  all  public  l>odic8  to  cliangv*  which  are  at  once  doslrablo 
and  politic.  All  ex|)crioncc  proves  that  tho  human  mind  is 
moro  ea(^r  and  restless  for  chanfres  than  troiiqnil  and  satisfied 
with  existinj;  institutiuns.  licsidcs,  tho  lorjro  States  will  always 
be  able,  by  their  jwwer  over  the  supplies,  to  defeat  any  unrea- 
sonable exertions  of  this  prerogattro  by  the  sninller  States. 

§  702.  This  reasoning,  which  theoretically  sts'nn  entitled  to 
great  weight,  has,  in  the  projrress  of  the  gni,-ernmcnt,  been  fully 
realized.  It  has  not  only  been  demonstmtcd  that  the  ^nate,  In 
ita  actual  onfanization,  is  well  adapted  to  tho  exigeneies  of  the 
nation,  but  that  it  is  a  most  important  and  valuable  part  of  the 
system,  and  the  real  balanocswhccl  which  odjusta  and  regulat4M 
its  movements.*  Tlio  other  auxiliary  prnvisinna  In  tho  same 
clause,  as  to  tho  mode  of  oppointment  and  duration  of  office,  will 
be  found  to  conduce  very  largely  to  the  same  Itenoficial  end.* 

§  708.  Secondly,  the  mode  of  appointment  of  the  seiiatorB. 
They  are  to  l»o  chosen  by  the  legislature  of  each  Pfate,  Tlirec 
schemes  pi-escnted  themHclvea  as  to  tho  mo<!e  of  appointment: 
one  waa  by  the  legislature  of  each  State ;  anulhcr  was  by  the  i>c«- 
pie  thereof;  and  a  thii-d  was  by  the  other  braneh  of  tho  national 
lepslatare,  either  directly  or  out  of  a  select  nomination.  The 
last  Bcheme  was  proposed  in  tlw  convention,  in  what  was  called 


I  TlM  PathmlU,  No.  17. 

•  TW  P«a<tnli«,  Ko.  <9 :  Ttta't  Mintw,  4  EUiot't  DttatM,  03,  M ;  S  VOmm'* 
JM-Lect.  HC  147.  lis. 

I  s  The  Fedtnlid,  No.  Sa  i  1  Kfttfi  Conua.  LMt.  11,  VP-  ^%  313- 
■  S  WlUm'i  Uw  LnL  1 18. 

•  hm  FMimiut.  Ko.  as. 


522 


coKsrrmmoK  op  thr  dntted  states.        [^boos  m. 


th«  Vii^inift  sohcmc,  one  of  the  rcsohitiooa  declaring  "  ibat  Uie 
iiicmtwrii  of  tho  second  bmiich  (the  £>cna(c)  oiigiit  to  be  elected 
by  tho«e  of  tho  tirtt  (the  House  of  Repre^ntativcs)  out  of  a 
proper  number  nomiiutted  by  the  individusl  legislatures"  {of  the 
State*)^  It  met,  however,  with  no  decided  wipport,  and  was 
negntired,  no  8tat6  votiug  in  its  favnr,  nine  ^tat4>B  voting  against 
it,  and  one  being  divided.'  The  fK^rond  scheme,  of  an  election 
br  the  people  in  districta  or  otherwise,  seetna  to  havo  met  with  as 
tittle  favoi-.^  Tho  first  sc-home,  that  of  an  election  by  tha  legia^ 
lature,  liually  prrvailcd  by  an  uuanimoug  vote.' 

§  704.  The  rcasoniDg  by  which  this  mode  of  appointment 
sopportrd  dws  not  ap|>oar  at  large  in  any  coiilemporary  dobat 
But  it  niuy  be-  f^thcri-d  from  the  imperfect  lights  left  ua, 
the  main  grounda  were  that  it  would  immcdiutoly  oonnvct  the 
State  governments  with  the  national  govcmntcnt,  and  thiis  bar- 
monixc  the  whole  into  one  universal  ayslcm;  that  it  would  intro- 
duoc  a  powerful  check  upon  rash  legislation  in  a  manner  nut 
unlike  that  created  by  the  difTerent  orgnni/ations  of  tlie  House  i 
Commons  and  the  House  of  [jorda  in  Great  Hritain;  and  that  f(^ 
wo!iI<l  increase  public  confidence  by  securing  tlio  national  gor- 
emment  from  nnduo  cncroacbmcnts  on  tho  powere  of  the  i^tatos.^ 
The  Federalist  notices  the  subject  in  the  following  brief 
summary  manner,  which  at  once  establislies  the  general  coDsei 
to  tho  arrangement,  and  the  few  ohjectinna  to  which  it  was  8U[ 
posed  to  lie  obnoxious:  "It  is  unnecesaary  to  dilate  on  the  Ap- 
pointment of  senators  by  the  State  legislaturea.  Among  the 
various  modes  which  might  have  beon  deriaed  for  constitnting 
this  branch  of  the  government,  that  which  has  been  propiwed  by 
the  convention  is  probably  tlie  most  couiTcnial  with  tho  publio 
opinion.  It  is  recommended  by  tlie  double  advantage  of  favoring 
a  select  appointment  and  of  giving  to  the  State  governments  sacl 
an  agency  in  the  formation  of  the  federal  guvcmment  as  mi 
secure  the  authority  of  the  former,  and  may  form  a  ooQveoicnt  link 


>  8m  Mr.  R«n<lo1iih'i  ftfUi  BeMttatien,  J«am.  of  ConnntiaD,  67,  88 ;  Tatofi  Mia-  ■ 
otM,  4  Blliot'i  Debum,  58,  99. 

>  JoiriMl  of  OiRTMllM,  led,  IM,  IM ;  Tktn'a  Uinoto,  4  ERIafl  DrfaM,  SI 
59,  a,  «t,  99  to  lOS. 

*  J««rn.  or  OeovanUon.  lOS,  IIM,  I4T,  907,  SI7.  tSS:  7at^*  Uimim.  i  ZlUot'a 
DcUtM.  «,  <4. 

*  TatN'i  UinobM,  4  EUiot'a  DOMm,  «t  6S,  «t ;  8  Qliot'a  DctialM,  tflL 


CH.  X.] 


TBS  SBKATe. 


£S8 


between  the  two  Bj-Btcmg."'  Thia  ia  very  trabdued  praiae,  and 
iD<JicitC8  more  do«bts  thnn  oxpcriooco  baa  aa  yet  justified.' 

§  T05.  Tho  CoDSlitiitiun  hiia  not  prmtdcd  for  the  inuuner  in 
which  the  clioice  shall  be  made  bj  the  8tuto  Icjrislalurcs,  whether 
by  ft  joint  or  by  a  concurrent  vote;  the  Uttur  ia  wbcro  both 
branches  form  one  assi^nihly  and  give  a  united  vote  nun>cric«lly, 
the  foniier  is  where  each  branch  gives  a  separate  and  indepen- 
dent vote.*  As  each  of  the  8tate  legislatures  now  oonsiets  of  two 
branches,  this  in  a  very  important  pra/'tical  question,  (lenerally, 
but  not  universally,  tho  choice  of  Benatora  is  made  by  a  concur- 
rent Totc*  Another  question  might  be  soggcHted,  whether  the 
executive  crautilutes  a  part  of  the  legisUture  for  such  a  purpose 
in  cases  where  the  State  conBtitution  gives  him  a  qualified  nega- 
tive upon  tlie  lava.  But  this  has  been  silently  and  universally 
settled  against  the  cxocutirc  participation  in  the  appointment 

§  706.  Tliirdly,  tho  number  of  senators.  Each  State  ia  en- 
titled to  two  senalon.  It  is  otmous  that  to  insure  competent 
knowledge  and  ability  to  discharge  all  the  functions  intrusted  to 
the  Senate  ("f  which  more  will  be  said  hereafter),  it  is  iudispcn- 
aable  that  it  should  consist  of  a  numljcr  sufiicieiitly  large  to  in- 
Hiiro  ft  sufficient  variety  of  talents,  experience,  and  practical  skill 
for  the  discbarge  of  all  their  duties.  TIio  le^alative  power 
elooe,  for  its  enlightened  and  prudent  exercise,  requires,  as  has 
been  already  shown,  no  small  share  of  patriotism  and  knowledge 
and  ability.  In  proportion  to  tho  extent  and  variety  of  the  la- 
bors of  legislation,  there  should  l>o  members  who  should  share 
them  in  order  that  there  may  be  ft  punctual  and  perfect  perform- 
ance of  them.  If  the  number  be  very  small,  there  is  danger  that 
some  of  the  proper  duties  will  be  overlooked  or  neglected  or  im- 
perfectly attended  to.  No  human  genius  or  industry  ia  adequate 
to  all  the  vast  concerns  of  government,  if  it  be  not  aided  by  the 
power  and  skill  of  numbero.     The  Henate  ought,  therefore,  on 

■  TU  Fxlenlist,  Km.  «%  S7  ;  1  E«iit'a  OcKUM.  LmI.  11.  f.  211. 

■  Sm  iIm  The  PnUralkt,  N'o.  S7. 

■  Rtwb  mi  CoMtil  87 ;  Ktut'%  OMam.  LMt  II,  pfk  S11,  fll. 

*  t  Rn»*>  Conin.  Lact.  II.  pp.  SU,  SIX.  Mr.  Cbraotllor  Ktat  my,  U  tu>  Ooof 
MrauriiM  (1  Hint'*  Coma.  Ltct.  11,  p.  US),  tlict  ia  !f«w  York  Uie  Miuton  ira 
•lMt«d  tj  ft  Joint  nit,  a  Iha  twa  Immim  do  art  wpwvUlj  oomouT.  Bat  lit  own 
ofrinioa  k,  tiMt  Hw  trae  eoMtnwtiaa  ef  the  Cuutitatioa  apoit  piacipb  ia,  that  (t 
•Iwald  ba  t^  ■  wwcBiwt  T«t«>  |a| 

H  It  it  BOW  npiUtaa  hftfUot  ON^rm  of  Jvij  tS,  1M<. 


6Zi 


OOXSTITUTIOS  OP  THE  0U1T>3)  fiTATES.  [bOOE  Ol. 


this  account  alone,  to  be  somcwbat  numeroua,  thongb  it  neeil  not 
aoA  indeed  ought  not,  for  otlier  reasons,  to  be  as  numerowt  as  the 
Houae.  Besides,  numbors  arc  important  to  (fire  to  the  hody  a 
suflk-iont  finnni.'sa  to  resist  the  iofluonce  which  the  popular  branch 
will  ever  be  solicitous  to  exert  over  tliem.  A  very  small  bo«l5 
is  moro  easy  to  he  overawed  und  intimidatod  and  ooutrolled  hy 
external  intlucuces  tJian  one  of  a  riNUtonable  size  embracing 
wcii^ht  oE  character  and  dignity  of  talents.  Xuinbcni  alono  in 
many  cnscs  coriTor  power;  and,  what  is  of  not  lens  iinjiurtance, 
they  present  more  rcaistanoo  to  corruption  and  luLi-i^e.  A  body 
of  five  may  bo  bribed  or  overborne,  when  a  body  of  fifty  would  be 
an  irresistible  barrier  to  usurpation. 

§  TOT.  In  addition  to  thia  consideration,  it  is  desirable  that  a 
State  should  not  be  wholly  nnrepresenied  in  the  national  coun- 
cils by  morn  accident,  or  by  the  temporary  abaencc  of  its  repre- 
sentative. If  there  be  but  a  single  representative,  sickneas  or 
casualty  may  deprive  the  State  of  its  vote  on  the  most  important 
occasions.  It  was  on  thia  account  (aa  well  as  others)  tliat  the 
confederation  entitled  each  Stale  to  send  not  leas  than  two  nor 
more  than  teven  delegates.  In  critical  eases,  too,  it  might  be  of 
great  importance  to  have  an  opportunity  of  oonsultHifc  with  a 
colleague  or  colleagues  having  a  common  interest  and  feeling  for 
the  State.  And  if  it  bo  not  always  in  the  strictest  sen^e  tnte 
that  in  the  multitude  of  counsel  there  is  safety,  there  ii  a  suSi- 
civnt  foundution  in  the  infirmity  of  human  nature  to  make  it  de- 
sirable to  gain  the  advantage  of  the  wisdom  and  information  and 
roflevtiou  of  other  independent  minds  not  laboring  under  the 
suspicion  of  any  unfavorable  bios.  Tlicse  reasons  may  tx*  prfr 
aumod  to  have  biid  their  appro]iriute  weight  in  the  del i)>erat ions 
of  the  convention.  If  more  than  one  representative  of  a  State 
was  to  be  admitted  into  the  Senate,  the  least  practicablu  ascend- 
ing number  was  that  adopted.  At  that  time  a  single  rvprescuta- 
tive  of  each  State  would  have  made  the  body  too  small  for  all  the 
pnrpoHes  of  its  institution  and  all  the  objects  l>efore  explained. 
It  would  have  been  composed  but  of  thirteen,  and,  supposing  no 
absences,  which  could  not  ordinarily  be  calculated  upon,  seven 
would  constitute  a  majority  to  decide  nil  the  mt-Jisuros.  Twenty- 
six  was  not  at  that  period  too  large  a  number  fur  dignity,  inde- 
pendence, wisdom,  experience,  and  efficiency.  And  at  the  present 
moment,  when  the  States  have  grown  to  twenty-four,  it  is  found 


CH.  X.] 


THE  SENATE. 


536 


that  fortT-«i(rtit  is  a  number  quite  amall  enough  to  perform  th« 
great  national  functions  confided  to  it,  and  to  embody  the  requi- 
site skill  and  ability  to  meet  tho  increancd  cxigcneirs  and  inulti- 
plied  dutie'«  of  the  office.'  Tborc  is  probably  no  tcginlativc  body 
on  earth  nlimso  dutks  iro  more  rariouit  and  intereetinfi  and  im* 
portunt  to  tho  public  welfare,  and  none  which  calls  for  higher 
tulcnta  and  more  comprchcnaivo  attainmonfat  and  more  untiring 
industry  and  integrity. 

§  708.  In  tlie  convention  tlicro  was  a  considerable  diversity  at 
opinion  aa  to  the  number  of  which  the  Senate  should  consiHt, 
and  the  apportionment  of  tho  number  amon;;  the  States,  When 
the  principle  of  an  equality  of  repre«outution  was  decided,  the 
only  <{tieetion  Beems  to  luive  been  whether  each  State  should  hare 
three  or  two  meralKrs.  Three  waa  rejected  by  n  vote  of  nioo 
States  against  one;  and  two  inserted  by  a  rote  of  nine  States 
against  one.^  It  doea  not  appear  that  any  proposition  was  ever 
entertained  for  a  loss  numlwr  than  two;  and  the  silence  of  all 
public  disciisaion  on  this  subject  seema  to  indicate  that  the  publio 
opinion  decidrdly  adopted  the  lowest  number  under  the  confed- 
eration to  bo  the  proper  number,  if  on  equality  of  representation 
wax  to  Ix  admitted  into  thn  Senate.  Whatever  may  )>e  the  future 
increase  of  Htates  in  the  Union,  it  is  scarcely  probable  that  the 
numlwr  will  ever  exceed  that  which  will  fit  the  Senate  for  the 
best  performance  erf  all  its  exalted  functions.  The  Rritish  Uooae 
of  Lorda  at  this  moment  prc^ubly  exceeds  any  number  which  will 
ever  belong  to  the  American  Senate;  aud  yet,  notwithstanding 
the  exaggerated  dGclamation  uf  a  few  ardent  minds,  the  sober 
sense  of  tho  nation  has  never  felt  that  its  number  was  cither  a 
burden  or  nn  infinnity  inherent  in  the  Con8titutinn.' 

5  709.  Fourthly,  the  term  of  service  of  the  senators.  It  is  for 
atx  years,  although,  as  will  he  presently  seen,  another  element 
in  the  composition  of  that  body  is,  that  one-tUrd  of  it  is  changed 
every  two  yearo. 

■  lir.  Taeka,  tht  l«anMd  Connnentator  oa  BUckatoiw,  in  ISU,  Mid :  "  Tht 
wbala  uiunbtr  at  moaton  ia  *!  (raont  linlud  to  Uurtj-tva  It  u  not  |irob*bl«  llwt 
)l  wtll  ivct  •xM»il  dfly,'  1  TvA.  Black.  Oanm.  Ays'.  SU.  How  Mnngly  hM  ow 
IMiinail  i^tuwUi  >lM«Jy  ou1atKiip«d  ill  bunUM  cdcnUtkni  I 

*.lc>nn»IafCoDnatlM.  SUJulf,  18».    8m  abo  Id.  ISO,  1«1.  I7S.  17S,  ISO,  1U. 

*  8m  th«  Rwka  q«ated  in  1  Tnefcw'*  BiMk.  Ommm.  App.  tS3 ;  1  WUmd'i  Uw 
LteU  ISO.  In  IMS  the  Honw  at  Lords  «ma  Mid  to  ba  0Mn|MMd  of  kbmt  ISO ;  tl  oaa 
pnlMUy  uMNla  SM. 


526 


COKSTITCTIOK   OP  THE  UNITED  STATIS.  [bOOE  m. 


What  vould  be  the  moat  proper  period  of  office  for  senators 
vas  an  iuquiry  admitting  of  a  stitl  wider  range  of  argiuncnt  and 
opiniuu  Uiaii  what  vuiild  be  the  niuttt  proper  fur  thv  nienilitrni  of 
the  liuusu  of  Bvprcsentiitivfti.  The  subject  vom  cuofcfiiwdly  one 
full  uf  intricacy  and  duubt  upon  which  the  wisest  statutmeo 
might  well  entertain  very  dilTereut  views,  and  tlie  best  patrioto 
might  well  ask  for  more  information,  without  in  the  sliglitest 
d4^px>e  bringing  into  tjuestiun  tlieir  intimity,  their  love  of  lib- 
eriy,  or  their  devotion  to  a  rc-publicao  gorenmteut  If,  in  tlie 
present  day,  the  pro$^s8  of  public  opinion  and  the  lights  of 
experience  furnish  iw  with  materials  for  a  decided  judgment,  we 
ought  to  remember  that  the  question  was  then  free  to  debate,  and 
the  fit  conclusion  was  not  easily  to  be  seen  or  justly  to  be  meas- 
nred.  The  problem  to  be  aulved  by  the  great  men  of  that  day 
was,  what  organization  of  the  legislative  power  in  a  republican 
government  is  best  adapted  to  give  permanency  to  the  Uoiuu  and 
security  to  public  liberty.  lu  the  convention,  a  greut  diversity 
of  judgment  was  apparent  among  ttiOHC  whose  purity  and  patri- 
otism  were  above  all  Huspiciun,  uud  whose  talout«  and  public  acr* 
vices  WL-re  equally  uaqiiestioniible.  Various  propositiuns  were 
entertained;  that  the  period  of  service  of  senators  should  be  dur- 
ing good  behavior,  for  nine  years,  for  seven  years,  for  sis  years, 
for  five  years,  for  (our  years,  for  three  years.'  All  these  propo- 
sitions successively  failed,  exeopi  that  for  seven  years,  which 
was  eventually  abandoned  for  six  years,  with  the  additional  liui* 
itation  that  ouc-Uiird  should  go  out  bicanially.'(a} 

1  'jmm.  of  Convcfttion.  119, 130^  147, 148  i  T*tM'«  MinvlM,  4  UUofi  D«tata^ 
TO.  II,  108,  IH  105,  loa. 

*  Joutn.  of  Connntiim,  07.  7S.  118.  130.  Ill,  HS,  148,  M7,  S17,  «S8,  «»,  878 1 
Y»tM*  Miautoi,  4  Elliot'*  Debato^  70,  71,  tOS,  104,  lOfi.  104.  HomtMqMMi  mom 
to  hire  been  >l«cli!*illf  gf  ojilnlaD  thit  •  Mimu  onj^  to  b«  chowB  fnr  lite,  a  mu  the 
rntUon  U  Bomr,  M  i4|xiit^  tiuJ  eien  at  Athena.  Hoateaqttinii'i  Spiiil  uf  Iauti,  R.  5, 
cli.  7.  It  lit  wvJl  known  lliil  lliii  uru  Gtn.  HuaUtoo'*  ojdaion  :  cr  laUm  hii  [n«p»- 
ritioD  wsi,  tliui  lbs  H-iiBton  ibonld  b«  <hoMii  to  Mm  dnHdg  good  behaTior.  Jonm. 
of  ConrtnlioD.  f^  130 ;  Kotth  AnMfliMi  Rariav,  Oct  1827,  MC.  It  appcatm  lo  hat* 
bean  OM  of  iit.  J*j.  Sttih  AoktriMn  Bvriov,  Oct.  1887.  p.  Vt.  Uf.  HadlMin'i 
origiiMl  oplnico  Mrnu  to  bare  bef*  la  faavs  ■  Snialv  eboKii  lor  a  loogn'  Ismi  Uibb  ibi 
llooN  of  Koprmralatii-M.  Vortb  Aniericu  Itevtev.  Od.  1837.  f.  S6S.  But  in  Iba 
caiiTattioa,  it  U  huI  that  be  wu  CiTtnbl/  inclined  to  Ur.  Haniltott'a  phw.    1  Pit- 


fa)  For  Ramfltoa'a  vicm  bm^  farthur, 
8  Hat^UoMt  UToiIca,  3M ;  S  Hllal*  Do- 
taoci,  308-S05 .  CnnU,  OuL  ot  Coiut 


U.  100 1  and  for  Madiaoii'i^   Lih  otJUd- 
lUB  \,j  Hire*,  II.  tsr. 


THE  SEBATC. 


527 


^ 


§  710.  No  inconsi<)e»bl«  tumj  of  objections  wu  brought  to 
l>CAr  against  thin  prolonged  t«rm  of  serricfi  of  the  gpiiatora  ))C* 
yond  that  fixed  for  the  tuembere  of  the  Hoobo  of  Representatii'CS, 
in  tlte  convention  and  U^forc  thp  people,  whon  the  Const!- 

lion  wan  njidcr  thoir  udvisfrnt-nt'  Perhapfl  aotno  of  tho»e  ob- 
jections still  linger  in  tbo  minds  of  many  who  entertain  a  general 
jealousy  of  the  powers  of  the  Union ;  und  who  easily  persuade 
thomselvos,  on  that  account,  that  power  should  frequently  change 
hands  in  order  to  prcTcnt  corruption  and  tyranny.  The  perpe- 
tuity of  a  body,  it  has  be«n  said,  is  favorable  to  every  stride  it 
may  be  disiMsed  to  make  towards  extending  its  own  power  and 
influence  in  the  government.  Such  a  tendency  is  to  be  discor* 
ered  in  all  bodies,  however  constituted,  and  to  which  no  efTccl- 
ual  check  can  )>e  opposed  but  fre^iuent  dissolutions  and  elections.' 
The  truth  of  this  remark  may  be  admitted ;  but  there  are  many 
circumstaniM^  which  may  justly  vary  its  force  and  application. 
While,  on  the  one  hand,  perpetuity  in  a  body  may  be  objectiona- 
ble, on  the  other  hand,  contlnoal  fluctuations  may  be  no  less  so, 
with  reference  to  its  duties  and  functions,  its  powers  and  its  efli- 
ciency.  There  are  dangers  arising  from  too  great  frequency  in 
elections,  as  well  as  from  too  small.  The  ()ath  of  true  wisdom 
is  probably  best  attained  by  a  moderation  which  avoids  either 
•ztrrmo.  It  may  be  said  of  too  much  jealousy  and  of  too  much 
Wnfldencp,  that,  when  eitlier  is  too  freely  admitted  into  public 
councils,  it  betrays  tike  treason. 

§  711,  It  Beems  paradoxicjil  to  assiert,  as  has  I>e*n  already  in- 
timated, but  it  18  theoretically  as  well  as  prat-tieally  true,  that 
a  deep-felt  responsibility  is  incompatible  with  groat  frequency  of 
elections.'  Men  can  fool  tittle  interest  in  power  wliii-h  slips 
away  almost  as  soon  as  it  is  grasped ;  and  in  measures  which 
they  can  scarcely  do  more  than  begin,  without  hewing  to  perfect 


Ida'i  HnL  SSV,  iw(&  Ta  a  qnwtian  of  m  lancb  diSnltr  ud  •Itliow;  m  tK«  do* 
TcniMtJon  «f  k  ffttnmmt.  It  la  not  *t  all  mufntHtig  that  Ncb  opiokau  AooM  Imtc 
fatn  Iwld  bj  thtm.  iu»d  maaf  otbtn  of  iIn  tmrait  nd  wot  «ttbgbt*»nl  patriota. 
T%tf  irialud  iluntbilitj-  sad  wccwi  lo  ■  Npabllcui  ^TaniMwt,  aad  mra,  lbtnfn% 
iM]gnit  to  aeca'n  it  agilut  the  imbTCllilf  molting  finni  what  the^ilMiDcd  too  hwqntirt 
ebangta  in  the  ■iltnlntrtrntkni  of  ita  powm.  To  bold  mch  ofqnioiu  waa  not  IhM 
daomed  a  juat  raatttr  of  repToaGb,  thoufli  fran  llw  fCMtlcal  oparatiaiia  «l  tlia  Cooirti- 
tqtiioa  thny  mnj  Dow  be  daouivd  luiMiUid. 

r*  2  Amnloaa  Uuamm,  HJ.  *  1  Ttiekat's  Black.  Qmm.  App.  IM. 

I*  8n  aaU,  1 989,  Ao.  OS  tlw  *UM  polBk 


528 


COXSTITUTION  OP  THE  CNTTBD  &TATB9.  [BOOK  lit. 


Few  measures  have  an  immediate  and  senatble  operation  ex&etlj^^ 
ftccording  to  their  wiBdom  or  policy.  For  the  niotit  part, 
arc  dc^tcndent  ujwn  otlier  laenwireB,  or  upon  time,  and  gradual 
intermixtures  with  tlie  Ijiisiness  of  life  aiid  the  geoeral  institu- 
tions of  society. '  The  first  superficial  view  may  shock  popular 
prejudices  or  errors,  while  the  ultimate  results  may  l>e  as  admi- 
^blo  and  excellent  as  they  are  profound  and  distant  Who  can 
take  much  interest  in  wearing  a  single  thread  into  a  measure 
which  becomes  an  ovonesoent  quantity  in  the  main  fabric,  whose 
texture  requires  constant  skill  and  many  adaptations  from  the 
Bomo  baud,  before  it^  perfection  can  bo  secured,  or  even  be 
prophesied  ? 

§  712.  The  objections  to  the  senatorial  term  of  oHico  oil  ro*; 
solve  tlicmsulvi-s  into  a  siiigio  ar^imtiit,  bovrevcr  varied  la  its' 
forms  or  illustrations.  That  argument  is,  ttuit  political  power 
is  liable  to  be  ubusud,  and  that  the  great  security  for  public  lib- 
erty coujtists  iu  bringing  home  responsibility  and  dependence  in 
those  who  are  intrusted  with  oRioo;  and  these  are  best  attained 
by  short  periods  of  office,  and  frequent  expressions  of  public  opin- 
ion in  the  choice  of  officers.  If  the  argument  is  admitted  in  its 
most  ample  scope,  it  still  leaves  the  question  open  to  much  dia* 
cussioR,  what  is  the  proper  period  of  ofhoe,  and  how  frequent  tlie 
elections  sliould  be.  This  question  must,  in  its  oaturo,  be  com- 
plicated, and  may  admit,  if  it  does  not  absolutely  require,  differ^ 
ent  answers,  as  applicable  to  different  functionaries.  Witboufe 
wandering  into  ingenious  specniations  upon  the  topic  in  its  most 
general  form,  our  object  will  be  to  present  the  reasons  which 
have  been,  or  may  be,  relied  on,  to  eBtal>lish  the  sound  policy  and 
wisdom  of  tlie  duration  of  office  of  tlic  senatora  as  fixed  by  the 
Constitution.  In  so  doing,  it  will  become  necessary  to  glance  at 
some  suggestions  which  have  already  occurred  in  considering 
the  organization  of  tlw  other  branch  of  the  legislature.  It  may 
be  proper,  however,  to  premise  that  the  whole  rt4isoniug  applies 
to  a  moderate  duration  only  in  office;  and  that  it  ssMinics,  us  its 
basis,  the  absolute  neocesity  of  short  limitations  of  office,  as  con* 
stituting  imltsjx-nsablc  checks  to  power  in  nil  republican  govern* 
raents.  It  would  almost  be  useless  to  descant  upon  such  a  baaia, 
because  it  U  universally  admitted  in  llic  tJnilr'd  States  as  a  ftm- 
damental  principle  of  all  their  constitutions  of  govenuncot. 
>  Tho  PeJanUit,  Ko.  dX 


CH.  X] 


TBR  SENATE. 


629 


^ 
^ 
^ 


N 


§  713.  Iq  the  first  place,  tfa«n,  all  the  reasons  which  ai>p\y  to 
tlie  duretion  of  th«  legislative  office  generally,  founded  upon  the 
advantagf^H  of  Tarious  knowledge  and  experience  in  the  princi* 
pies  and  duties  of  legislation,  may  be  urged  with  increased  force 
in  regard  to  tJie  Senate.  A  good  goTernment  implieti  two  things: 
lirst,  fidelity  to  the  object  of  govenuncnt,  which  is  the  bappineM 
of  the  people ;  secondly,  a  knowledge  uf  the  means  hy  which  that 
(^jeot  is  to  be  attained.  Some  governments  are  deficient  in  both 
these  qualities;  most  ara  deficient  in  the  brat  Some  of  our 
wisMt  stikt'^smen  liavu  not  scrupled  to  assertv  that  in  the  Ameri- 
can fruvcruau-nta  t^io  little  Bttentioa  has  been  paid  to  the  latter.' 
It  is  utterly  impossible  for  any  nsaombly  of  men,  called  for  tJie 
most  part  (ram  tlie  pursuits  uf  private  life,  continued  in  appoiut- 
mont  for  a  abort  (ime,  aud  led  by  no  permanent  motiro  to  dwote 
the  intorvaU  of  public  occupation  to  the  study  uf  the  mUurc  and 
opcnitiODB  of  government,  to  esvape  from  the  <^mniissioii  of  many 
errors  in  the  diachaj^  of  their  Icf^slutive  fuucliuus.*  In  pro- 
portion to  t)ie  extent  and  variety  of  these  functions,  the  national 
interests  which  Uicy  involve,  and  the  nutionsil  dudes  which  they 
imply,  ought  to  rise  the  inlellcvtuu!  qualifications  and  solid  at- 
tainments of  tlie  mcmbom.  Even  in  our  domestic  cuucwms, 
what  are  our  vuluminuus  and  dver-ehungiug  codvs,  hut  monu- 
ments uf  deficient  wisdom,  liasty  resolves,  and  still  more  hasty 
repeals  1'  What  arc  they,  but  admonitions  to  the  people  of  the 
dangers  of  rash  and  premature  legislation,*  of  ignorance  that 
knows  not  its  own  mistakes,  or  of  orcrvccning  conlidonoo  vhich 
heeds  nut  its  own  foHicsT 

%  714.  A  well-constituted  Senate,  then,  whicli  should  inter- 
poee  some  restraints  upon  the  sudden  imptilsea  of  a  more  numer- 
ous branch,  would,  on  this  account,  be  of  great  value.*  But  its 
value  would  be  incalculably  increased  by  making  its  term  of 
otTiee  such  that,  with  moderate  industry,  talents,  and  devotion  to 
tlie  public  servii!e,  its  meailiers  could  scarcely  fail  of  having  the 
reasonable  information  which  would  guard  them  against  gross 
errors,  and  the  reasonable  firmneHs  which  would  enable  tliem  to 

>  Tlw  FnltnlM.  Ho.  63 ;  3  Wiln.-,  U«  t>ct.  H«,  UT.  HS. 

*  Tbe  FedniliM.  Ho.  SS-.  1  EUiot'i  Dcbtta.  AS.  M;  14.  »»  to  ttt)  S  EUiot't 
DcbaUa.  M).  &I  1  3  WiUcoi'i  L«w  Lcct  ISl  i  t  Kmi'i  Omdh.  LkL  11,  p.  212. 

■  n*  FodenlUl.  He-  «i. 

*  Thm  PolftitiM.  No.  <3 1  1  EUiof)  IMmIm,  IW,  MS^  HI.  S«  io  3«  ;  S  WUmii'i 
U»  Ur*.  1(6,  H7.  KB,  151 ;  1  Kwt'i  Cooua.  »& 

▼OL.  I.  — St 


b&O 


CONSnTDTlON  OP  THE  OmTBD 


[book  m. 


resist  visionary  epeculatioiui  and  popular  excitements.     If  public 
men  know  thut  the}-  inity  Bafvly  wait  for  the  graduul  oclion  of  a 
Eutind  public  opinion  to  di-«iilu  upon  tlio  merit  of  tlieir  a«tioiu 
and  meastirus  before  they  can  be  alnick  dourn,  they  will  bo  mnrc 
ready  to  a»iumo  roaponaibility,  nnd  pretermit  present  |iopuIarity 
for  (utnrc  Kotid  reputation.'    If  they  arc  designed,  by  the  very 
etructuro  of  the  government,  to  secure  the  States  aguiost  en- 
croachments njKin  their  rights  and  libertiea,  this  very  iicrina- 
ncnoo  of  office  adds  new  means  to  effectuate  the  object,     l^opulsr 
opinion  may,  perhapH,   in  its  occasional  extravagant  sailie^,  at 
the  instance  of  a  fawning  demagogue  or  a  favoritn  chief,  incline 
to  overleap  the  constitutional  barriers,  in  order  to  aid  their  ad- 
vancement or  gratify  their  ambition.     Dut  the  solid  judgment  of 
a  senate  may  stay  the  evil,  if  its  own  duration  of  power  exci'cda 
that  of  the  other  brancbes  of  the  govenuncnt,  or  if  it  combines 
the  joint  durability  of  butb.     In  point  uf  fact  tlio  Senate  haa  this 
desirable  limit.     It  combines  tlio  gx-Tiod  of  office  of  the  exeeu- 
live  -Kith  that  of  the  inerabcra  of  the  Ifouaut  while  at  the 
time,  from  its  own  biennial  changes  (aa  wc  shall  prcaently  see),] 
it  is  silently  subjected  to  tJie  deliberate  voice  of  the  States. 

§  715.  In  the  next  place,  mutability  in  the  public  councils 
arising  from  a  rapid  succession  uf  ni-w  members  is  found  by  ex- 
perience to  work,  even  m  domestic  concerns,  serious  misohiefa. 
It  la  a  known  (act  in  the  history  of  the  States  that  every  new 
election  changes  nearly  or  quite  one  half  of  its  repr^-aentativcs,'! 
and  in  the  national  government  changes  less  fmquent  or  leas^ 
numerous  can  scarcely  be  expected.  From  this  chanffe  of  men 
there  must  unavoidably  arise  a  change  of  opinions,  and  with  this 
diangc  of  opinions  a  correspondent  diangc  of  meaaurea.  Now 
experience  demonstrates  tliat  a  continual  clwnge  even  of  good 
measures  is  inconsistent  with  every  rule  of  prudence  and  everjr 
proApect  of  flucei-ss^*  In  nil  human  affairs  time  is  required  to 
consolidate  the  elements  of  the  best  concerted  measures  and  lo 
adjust  the  little  interferences  which  arc  incident  to  all  legisla- 
tion. Perpetual  changes  in  public  institutions  not  only  ■  u 
intolerable  coutroveniies  and  sacrifices  of  private  inlui'  -  : 
check  the  growth  of  tliat  steady  indnstry  and  cntor|>rise  which 
by  wise  foreoast  lay  up  the  means  of  future  prosperity.     Besides, 

>  Sm  I  KUlot'i  IMMM,  MS, »!,  ia»  to  X78  ;  S  eiljot'*  DalMUa.  4S  t«  Bl. 
*  The  F«dtntut,  >'o.  «3.  *  Id.  No.  03  ;  1  Kenf>  OsHni.  S12,  SIS. 


CH.  X.] 


TBB  SSNATR. 


681 


th«  iDHtability  of  public  oouncils  gives  an  unreasonnblc  advautage 
to  th«  sagdtiiouft,  tbe  cunning,  nnd  the  moneyed  capilalinU. 
Every  new  regulation  concerning  eommeroo,  or  revenup,  or  nian- 
iifncttircis  or  agriciiUnre,  or  in  any  manner  affecting  the  relative 
value  of  the  different  syMJcies  of  proprrty,  prpaents  a  new  harvest 
to  those  who  watch  the  change  and  can  trace  the  caniiequenoes, 
—  a  harveft  which  in  tora  fnno  the  hand  of  tbe  honest  laborer  or 
the  confiding  artisan  to  enrich  thoee  who  coolly  look  on  to  reap 
profit  where  they  hare  sown  nothing.*  In  short,  sueb  a  state  of 
thinga  generates  the  worst  pasaionit  of  selfiHlincHa  and  the  worst 
spirit  of  gaming.  However  parudoxioal  it  muy  ftccni,  it  is  never 
thelms  true,  that  in  affairs  of  goremmont  the  best  measurea  to 
bu  safe  must  lic  elowly  introduced ;  and  the  wisest  couneils  are 
tho«e  vrbioh  proeuud  by  steps  and  reach  circuitously  their  eonelu- 
flioiL  It  is  then  important  in  this  gcnemi  view  that  all  the  piiblie 
fnnctionarieft  should  not  terminate  their  offices  at  the  aomc  pe- 
riod. "Vhe  gradual  infusion  of  new  elements  which  may  mingle 
with  the  old  secures  a  gradual  renovation  and  a  permanent  union 
of  the  whole. 

§  Tift.  Itut  the  III  effects  of  a  mutable  govnmment  are  still 
more  strongly  felt  in  the  intercourse  with  foreign  nations.  It 
forfeits  tbe  respect  and  oonfidenee  of  foreign  nations  and  all  the 
advantages  connected  with  national  character.*  It  not  only  lays 
its  ineasnres  open  to  the  silent  operations  of  foreign  intrigue  and 
management,  but  it  snbjccta  its  whole  policy  to  be  counteracted  by 
the  wiser  and  more  Sta1)le  policy  of  its  foreiprn  rivals  and  adver- 
sarien.  One  nation  is  to  another  what  one  individual  is  to  an- 
other, with  this  melancholy  distinction,  perhaps,  that  nations 
with  fewer  benevolent  emotions  than  individuals  are  under  fewer 
restraints  also  from  taking  undue  adviinta^^-s  of  the  indi»crctions 
of  each  other.'  If  a  nation  is  perpetually  fluctuating  in  ita  mens- 
ucrs  as  to  the  protection  of  airrtciilture,  cuiiimerec,  and  maniifact- 
uri's,  It  exposes  all  its  infinnitiee  of  purpose  to  foreign  nations, 
and  tbo  latter  with  a  systematical  s^aeity  will  sap  all  the 
foundations  of  its  pro8|)ority.  From  this  e^iuse  under  the  confed- 
eration America  suffered  tho  moat  serious  evila.     "She  finds," 


>  The  F«I«nIiit,  Ko.  Ct. 

■  Tho  PtcUnUUt.  So.  «3 ;  1  EUiot'*  Dtb>tM.  MS,  SOP. 

■  Tho  Pedonlbt,  Hol  62 ;  1  EUiot'a  DtblI*^  US,  STO  to  S7S ;  1  Kcnf  •  Conun. 
212,81). 


5&3 


COHBnTOnON  OP  THE   UNITED  STATES.  [BOOK  til. 


said  the  Fedeniliitt,>  with  uduhuhI  boldne»  and  (rocdom,  "that 
ahe  is  held  in  no  respect  by  her  friends,  that  alio  U  the  derision 
of  her  euL-miv8,  anil  Ilm(  «\w  in  a  prey  to  every  imtioii  which  hs 
an  iuteri-jtt  in  spcculiitiitg  ou  her  Huctuatisg  councils  and  euthar- 
rasaod  affairs." 

§  717.  Further,  foreign  gov^mmenta  can  never  Bafcty  enter 
into  any  permanent  arrangemonta  with  one  whcoe  councils  and 
go^'eniinent  are  perpetually  fluctuating.  It  vaa  not  unreasonsil 
hte,  thei-efore,  for  them  (o  object  to  the  continental  CongrcAa  that 
they  could  not  guarantee  the  fulfilment  of  any  treaty,  and  there- 
fore it  was  uaeless  to  negotiate  any.  To  secure  the  respect  of 
foreign  nations  there  must  lie  power  to  fulfil  engageniunttt,  confi- 
dence to  sustain  them,  and  durability  to  insure  their  cxvcutioa 
on  the  part  of  the  government  Xutimial  charactvr  in  cases  of 
this  sort  is  inestimable.  It  is  not  siifliciont  that  tticrc  should  be 
a  satisc  of  jnstioe  and  dispositiou  to  act  riglit,  but  there  must  tia 
an  enlightened  pcmiancticy  in  the  {>uliey  of  tJie  government.* 
Oaprice  is  just  as  misehieTOus  as  folly,  and  corruption  scarcely 
worse  than  perpetual  indecision  and  fluctuation.  I»  this  ricw, 
independent  of  its  legi.stative  functions,  tlic  participatiun  of  tlie 
Senate  in  the  functions  of  tbo  executive  iu  appointing  arabaasa- 
dor«  Rud  ill  forming  treaties  with  foreiffn  nations  gives  additional 
weight  to  the  reasoning  in  favor  of  its  pruluugod  term  uf  service. 
A  mor«  full  survey  of  its  other  functions  will  nutice  that  reason* 
ing  absolutely  irresistible,  if  the  obj«ret  is  that  they  should  btt 
performed  with  independence,  with  jtidgmentf  and  with  scrupn* 
loos  integrity  and  di]?nity. 

g  TIA.  In  answer  to  all  reasoning  of  this  sort,  it  has  been 
strenuously  urged  that  a  senate,  constituted,  not  immediately 
by  the  people,  for  six  years,  may  ^rradually  acquire  a  dangerous 
pre-eminence  in  the  goveniment,  and  ev«ntnully  transform  itself 
into  an  nnstocrnry.'  Certainly  such  a  case  is  poMiblo,  but  it  is 
scarcely  within  the  range  of  prubnbility,  while  (he  people  or  the 
^vernmcnt  are  worthy  of  protection  or  eonndeuoc.  Liberty  may 
be  endangerod  by  the  abuses  of  liberty  as  well  as  by  the  aluism 
of  power.  Tliire  ore  quite  as  numerous  instani'^s  of  tlie  former 
as  of  the  latter.*    Vet  who  would  reason  that  there  should  b«  do 


I  The  Fedemlbl.  Sa  63. 

*  8t«  1  EnkF|-<  Dtimb^  ie».  SrS.  S7S.  Vi.  ■  See  S  Amr.  HaMaM,  MT. 

*  The  r«Ur>Urt.  No.  U;  I  EJliol'i  DehriM,  Sfft,  Ki. 


ca.  X.] 


THK  8KSATE. 


SS8 


I 


I 


liberty  lecaime  it  had  bepn,  or  it  might  be,  abuMd?  Tyranny 
itAolf  would  not  dtsire  a  more  cogont  argument  tlian  that  iho 
danf^r  of  abuse  wa»  a  f^round  fur  the  denial  of  a  right 

§  710.  But  th«  irrcKJHtiblc  reply  to  aU  »ueh  reattoning  is,  that 
befun-  Biioh  a  revulutiou  chu  bv  i-ETuc-lcd  the  Senatt^  must,  in  Ihi^ 
(irat  place,  corrupt  it»olf ;  it  mnet  next  corrupt  th«  Htate  legia- 
laturoa;  it  mint  then  corrupt  the  Uousg  of  Repmtentativi^s;  and, 
lastly,  it  must  corrupt  the  people  at  large,  Uuless  all  tliese 
things  are  done  and  oontiiiiicd,  the  usurpation  of  the  Senate 
would  l)e  as  vain  as  it  wmild  betroiuient  The  periodical  change 
of  its  meinliers  would  otlierwise  rc^ncrate  tbc  whole  body.  And 
if  such  imiveiBal  corruption  should  prevail,  it  is  quite  idle  to  talk 
of  usurpation  and  aristocracy ;  for  the  govumuK'nt  would  then  be 
exactly  what  the  people  wotild  chooae  it  to  be,  it  would  repre- 
sent exactly  what  they  would  deem  fit.  It  would  perpetuate 
power  in  lite  very  form  which  thoy  would  advise.  No  form  of 
government  ever  pro]>oeed  to  contrive  a  method  by  which  the  will 
of  the  people  should  be  at  onoe  represented  and  defeated;  by 
which  It  should  choose  to  be  enslaved,  and  at  the  same  time  by 
which  it  should  be  protected  in  its  freedom.  I^rivate  and  public 
Tirtue  is  the  foundation  of  repnblics;  and  it  is  folly,  if  it  is  not 
madness,  to  expect  that  rnlers  will  not  buy  what  the  people  are 
eager  to  sctl.  The  people  may  guai'd  tht>miM>IveB  against  the 
opprvsttions  of  their  governors ;  but  who  sliall  guard  them  against 
their  own  oppression  of  themselves  ! 

§  730.  Rut  experience  is,  after  all,  the  best  test  upon  all  sub- 
ject«  of  this  sort.  Time^  which  di&Holves  tlie  frail  fabrics  of 
men's  opinions,  serves  but  to  confirm  the  judgments  of  nature. 
What  are  the  letwons  which  the  history  of  our  own  and  other  in- 
stitutions teachea  us  ?  In  f!  rcat  Britain  the  tlous^  u(  L>ords  is  he- 
reditary ;  and  yet  it  has  never  hitherto  been  able  sueocssfully  lo 
assail  tlie  public  liberties,  and  it  has  not  iinfr^iiueutly  presvrred 
or  enforced  them.  The  Rouse  of  Cominuns  is  now  ehoncn  for 
■oven  years.  Is  it  now  less  an  organ  of  the  fiopiilar  opinion  and 
leita  jealoiui  of  the  public  rights  than  it  was  during  annual  or 
triennial  Piirliuments  ?  In  Virjciuia,  the  House  of  Delegates,  be- 
fore the  ttcvohilion,  was  chosvn  for  seven  years,  and  in  some  of 
the  other  colonies  for  three  years.'  Were  they  then  subservient 
to  the  crown  or  faithless  to  the  people  ?     In  the  present  constitu- 

>  1  EUiot'*  MMt%  S7S. 


534 


CONSTTTDTIOK  OP  TQE  IWIIKD  STATES.  [dCKIS  OT. 


tions  of  the  States  of  Amvricu  tborc  Is  a  great  diversity  in  the 
terms  of  oRke  as  well  a»  the  qualifications  of  the  State  senates. 
In  Nevr  York,  Virginia,  Pc'iiititylvaiiia,  and  Ki-iilucky,  the  svnate 

ctioiien  for  four  years  ;>  in  Oulawaro,  Mituissippi,  and  AU- 
la,  for  three  yeara;  in  South  CarolJua,  Ttiuueaae^  Oliio,  Hii 
souri,  and  Luuisiaiiii,  biennially;  in  Marj'laiid,  for  Gvo  yeare; 
in  the  other  States,  annually.* (a)  Thcsu  divonitlcs  ore  OS 
striking  in  the  eonfltitutioii^  which  were  framed  a«  long  ago 
the  times  of  the  Rerolution,  mt  in  those  which  are  the  growtli, 
as  it  wore,  of  yesterday.  No  one  with  any  show  of  reason  or 
fact  can  pretend  that  the  liberties  of  the  people  have  not  boon 
quite  as  safe,  and  the  legislation  quite  as  enlightened  and  pure, 
in  those  States  where  Uie  senate  is  choaon  for  a  long  as  for  a 
short  perio<l. 

§  721.  If  there  were  anything  in  the  nature  of  the  objections 
which  have  been  under  consideration,  or  in  general  theory,  to , 
warrant  any  conchiiiion,  it  would  be,  that  the  circumstanees  of 
the  States  being  nearly  equal,  and  the  ohjeots  of  legislation  the 
same,  the  snm(!  duration  of  office  ougtit  to  be  apjdied  t^t  all.  Yet. 
this  diversity  has  existed  without  any  nssignablo  inconvenience' 
in  its  practical  results.  It  is  manifest,  then,  that  the  difTerent 
manners,  habits,  institutions,  and  other  clrcnmstances  of  a  soci- 
ety may  admit,  if  they  do  not  require,  many  dtfTereut  niudiGca- 
tions  of  its  legislative  deparlincnt,  without  danger  to  UlxTty  on  i 
the  one  hand  or  groRs  imbrvJIity  on  the  other.  TlicrC  are  many 
gnards  and  checks  whieh  are  silently  in  operation  to  fortify  the 
benelits  or  to  retard  the  miseliiefs  of  an  inii>crfect  systum.  In 
the  choice  of  organisations,  it  may  be  affinned  that  that  is  on  the 
whole  l»est  which  secures  in  practice  the  most  zeal,  cx|K>rionc*, 
skill,  and  fidelity  in  the  discharge  of  the  legislative  fuuetioiis. 
The  example  of  Man'land  is,  perhaps,  mora  striking  and  in- 
structive than  any  one  which  has  been  brought  under  review ;  for 
it  is  more  at  variance  with  alt  tlio  objections  raided  against  the 
national  Senate.  In  Maryland  the  senate  is  not  only  chosen  for 
five  years,  bot  it  possesses  the  exclusive  right  to  Gil  all  vacancies 

t  Tin  Ptdmliit,  No.  39. 

1  Dr.  licbtr*!  Encjiel.  Amctkaiia,  art.  ConM^Hau  t/  lit  Slata:  Tbc  Fttknlbt, 
So.  ». 


(a)  Uaay  liktagtt  han  bMn  msdn  in 
ttu>  nguil  »by»  Ihtn  ConoMntiriM  ivcn 


written,  but  Ihoy  hm  gftrntMy  tetm  in 
tb«  dincUoQ  of  •hottciung  the  tena. 


TBE  SENATE. 


635 


I 


I 
• 


ia  its  own  bod;-,  aod  has  do  rotation  during  the  term.'  What  a 
fniitfal  aourc«  might  not  thia  be  of  theoretical  objections  and 
colorable  alarms  (or  the  safety  of  the  public  libortie»!  Yet 
Marj'land  continues  to  enjoy  all  the  blessings  of  good  govern* 
ntent  and  ralionul  freedom  without  molestation  and  without 
dread.  If  examples  are  sought  from  antiquity,  the  illustration 
arc  not  less  striking.  In  Spsrta,  the  ephori,  the  annual  repi-e- 
svnt«tivuk  of  the  poupio,  were  found  uu  overmatch  for  a  seuatc 
fur  lifv;  tlio  former  continually  guining  authority,  and  finally 
drawing  all  power  into  thi-ir  own  hands.  The  tribunes  of  Bomo, 
nTho  wore  tho  a-prciictitutives  of  the  people,  prerujlod,  in  almost 
every  conl«.'«t,  with  the  senate  for  life;  and  in  the  cud  gained  a 
complete  triumph  owr  it,  notwithstauding  unanimity  amont;  the 
tribunes  wim  indispcuMubk-.  Thia  fact  pruveit  the  irivsistible 
force  puMcwed  hy  that  brunch  of  the  govornmt--ut  which  repre- 
sents the  popular  will' 

§  722.  Coiiflidering,  then,  the  various  functions  of  the  Senate^ 
the  (|unlificnlionfl  of  skill,  experience,  and  information  which  ftre 
requirod  to  discharge  iiwni,  and  the  importance  of  interpoaing, 
not  a  nominal  but  a  real  cliucic,  in  ordvr  to  guard  the  States  from 
usurpations  upon  their  authority,  and  the  people  from  becoming 
the  victiuui  of  violent  iHiroxysuis  in  legislation;  the  term  of  six 
yeura  would  suem  to  hit  the  just  medium  bctwocu  a  duration  of 
of&ee  which  would  too  much  rcsutt,  und  a  like  duration  which 
would  tuo  much  invite,  tJiuse  changes  of  policy,  foreign  uud  do- 
mestic, whieli  the  best  interests  of  the  cuuutry  may  require  to  bo 
dcliborstely  weighed  and  gradually  inlroduocd.  If  the  State 
governments  are  found  tranquil  aud  prottpcroiis  and  safe  with  a 
Miiato  of  two,  three,  four,  and  live  years'  duration,  it  would 
seem  impoMsiblo  for  the  Union  to  bo  in  danger  from  a  terra  of 
Mrrlce  of  six  years." 

j  723.  But,  as  if  to  make  assurance  doubly  sure,  and  take  a 
bond  of  fate  in  order  to  quiet  the  lost  lingering  scruples  of  jeal- 
ousy, the  succeeding  clause  of  tho  Constitution  has  interposed 
an  int«rmediiite  change  in  the  elements  of  the  body,  which  would 
aeem  U)  niakt^  it  al»oIulely  a)>oTe  exception,  if  reason,  and  not 
fear,  ia  to  prevail ;  aud  if  government  is  to  bo  a  reality,  and  not 
a  vision. 

■  Tbe  FtxImlHt,  H*  «9.  *  liL  Ko.  63 ;  H.  Ho.  S4. 

■  1  K]Uot'iDeli*te*,S«taMi  Id.  01}  1  Kent'*  Coaun.  Lect.  U,  pp.  SIS;  Ul. 


688 


CONHTITDTIOK   OF  THE  UKITED  STATES.  [BOOK  HI. 


}  724.  It  declare  "  Immediately  oftor  they  [the  senators]  shall 
he  fimembled,  in  con))«<|u«nce  of  the  fint  elccliou,  they  shall  bu 
di^-ided,  aa  equally  aa  may  be,  into  three  classes.  Tlie  MMts  of 
the  sunatora  of  the  first  cliuts  shull  bo  vscat«d  at  the  expiration 
of  the  second  year;  of  the  secoud  class,  at  the  cx|)iratioo  of  the 
fourth  ycJir;  aud  of  the  third  class,  at  the  expiration  of  the  sixth 
year,  so  that  one-third  may  be  chosen  every  8«c-ond  year."  A 
proposition  wa«  made  in  the  convention  that  the  senators  shonld 
be  chosen  for  nine  years,  one  third  to  go  out  biennially,  and  was 
lost,  three  Stated  voting  in  the  aftirmative  and  eight  in  the  neg- 
ative; and  then  the  prcaent  limitation  was  adopted  by  a  vote  c^ 
seven  Statea  against  four. '  Here,  then,  is  a  clause  which,  with- 
out iropairiag  the  efficiency  of  the  Senate  for  the  discharge  of  its 
high  function!),  gradually  changes  its  members  and  introduces  a 
biennial  appeal  to  the  States  which  must  forever  prohibit  anr 
permanent  combination  fur  sinister  purposes.  No  penioa  would 
probably  propose  a  Icsa  duration  of  office  for  the  Senate  than 
double  the  period  of  tbc  House.  In  effect,  this  provision  changes 
Ihc  composition  oi  two-thirdit  of  that  body  within  that  [i-riucL' 

§  725.  And  here,  again,  it  is  proper  to  remark  that  experi- 
ence has  established  the  fact  beyond  all  controversy,  that  the 
term  of  the  ."senate  in  not  too  long  either  for  ila  own  Bcourity  or 
that  of  the  States.  11i«  reasoning  of  tliose  exalted  minds  which 
framed  the  Constitution  has  been  fully  realited  in  practice. 
While  the  House  of  ReprenvntativGa  has  gone  on  incnriwing  and 
deepening  its  influence  with  thu  people  with  an  irresistible  power, 
the  Senate  has  at  all  times  felt  tho  impulses  of  tlie  popular  will, 
and  has  never  been  fuimd  to  resist  any  solid  improvements.  I*et 
it  be  added  that  it  has  given  a  dimity,  u  solidity,  and  an  «i- 
lightencd  spirit  to  the  operations  of  the  govcnunent  whidi  have 
DuintAined  respect  abroad  and  confidence  at  home. 

S  726.  At  the  (irgt  aeasion  of  Congress  under  the  Constitution 
the  division  of  the  senators  into  three  classes  was  made  in  the 
following  manner.     The  senators  present  were  divided  into  three 

>  Joun.  or  CsnveiiUm,  Stilt  Juat,  1757.  f.  1*9 ;  Tatot'*  Mianie^  t  EIU»t*i 
tkiMm,  t03  to  100, 

*  I  PJIiot'i  DcbalM,  S4  to  «a  i  I<L  tl.  fi;  I  Kant'i  Qmaa.  U«l.  11,  pp,  i\3,  214. 
A  i<i**r  la  wcoH  tlw  *nwt«n  mm  )iropo«ed  u  an  uwaidneiit  tn  ■onv  ut  tlw  8t>t>  md. 
natiow;  but  U  does  not  w«in  lo  bara  obtoiorf  g>n«»l  U-nr.  1  ElUora  IVbusi^  2S7, 
SSS  to  3dl.  SU  U  973  i  S  Kllioi'*  DeUM.  SC4.  lUmj  potwt  immntt  nl^ht  be  aqcxi 
■CunM  U. 


THE  SSNjTB. 


581 


^ 


^ 
^ 


classM  bj  Diunc,  tlie  first  conaUtinfir  of  six  persons,  the  second 
of  iH'vi-n,  and  the  third  of  six.  Tlirt-c  pajtcrs  of  an  equal  size, 
numbered  one,  two,  and  three,  were  by  the  secretary  rolled  up 
and  put  into  n  box,  and  drawn  by  «  coinn]itt««  of  three  persons 
chosen  for  the  purpono  in  bohalf  of  the  renpective  cIas8«8  in  trhieli 
Aeh  of  them  wa«  placed,  and  the  clasHca  were  to  vncate  their 
MatH  in  tlif  Sonata  according  to  tho  order  of  the  numbers  dniwii 
for  th<^m,  licj^imiing  with  number  one.  It  was  also  provided  that 
when  aenaton)  ahould  take  their  nests  from  States  which  had  not 
then  appointed  oenntorv,  they  should  he  placed  by  lot  in  the  fore- 
going clasaeH,  but  in  such  a  manner  aa  ilhould  keep  the  clasges  as 
nearly  equal  aa  potwiible.'  In  arranging  the  original  claDses  oare 
wail  taken  that  Iwth  Honators  fmm  tho  same  Slate  should  not  l»e 
in  the  same  class,  so  that  there  neror  should  be  a  vacancy  at  the 
some  tiuMJ  of  the  seats  of  both  senators. 

§  T27.  As  vaeaneios  might  occur  in  the  Senate  during  the 
recess  of  the  State  legislature,  it  became  indispensable  to  pro- 
Tide  for  that  exigency.  Accordingly,  the  same  clause  proeeedg 
to  declare:  "And  if  vacancies  happvn  by  resignation  or  other- 
wise during  the  recess  of  the  legislature  of  any  8tate,  the  execu- 
tive thereof  may  make  temporary  apjMintroents  until  the  next 
meeting  of  the  legislature,  which  shall  then  fill  such  x-aeanciea." 
U  does  nut  appear  tliat  any  strung  objection  was  urged  in  the 
convention  agaiust  this  jiropusition,  although  it  was  not  adapted 
without  sumo  opposition.'  There  seem  to  havo  \ieen  three 
courses  presented  for  the  consideration  uf  the  convention,  either 
to  leave  the  vacancies  unfillod  until  the  meeting  of  the  State 
legislature,  or  to  atluw  the  State  legislatures  to  provide  at  their 
pleasure  prospectively  for  the  occurrence,  or  to  confide  a  tempo- 
rary appointment  ti>  some  select  ?itato  functionary  or  body.  Hie 
latter  was  deemed  the  most  satiafactory  and  convenient  course. 
Confidence  might  justly  i>e  reposed  in  tlie  Statn  cxeeutive,  ns 
represenliug  at  oik«  the  interests  and  wishi^  of  the  State,  and 
enjoying  all  the  proper  meaiui  of  knowledge  and  responsibility  to 
insure  a  judicious  api>ointm«nt,' 


1  Jooniah  at  th*  Snul^  15«h  Hav.  IT«9.  pp.  3S,  M  («ltt.  Ig»>. 

*  Joonwl  «r  CoDTMitkni,  «lh  Aag.  S37,  tU. 

*  !■  tha  ana  «f  lir.  [Anam,  »  naatoc  ftvni  Conotvtwirt.  •  qaestioa  iKViUTed, 
wbother  tba  BtM* •montire  malil  imake  au  ippouitmciil  in  tk nitM id  tfce SUta  kgu- 
klKM  ia  — tJettalJMi  el  Um  axpuUMD  of  Uis  tern  of  oBkc  of  aa  fttWwf  aaaatoa.    It 


538 


CONSTITCTION  OP  THB  CNrXED  STATES.  [BOOK  HI, 


§  728.  Fifthly,  th«  qualiQcatious  of  scnatora.  The  Constitu- 
tiou  dcclarcB  that  "No  person  shall  be  a  eeoator  who  shall  Dot 
hare  attuiiiud  tliu  npj  of  tliirty  yean,  and  be«n  nine  years  a  citi- 
zoa  of  Ihu  UniU.-d  Staus,  and  who  shall  not,  when  elected,  tie  an 
iuibabitttut  of  that  8tAt«  for  which  he  shall  lie  chosen. "  As  the 
nature  of  tlie  duties  of  a  senator  requires  more  ex|ierience,  knonU 
eigfi,  and  stability  of  character  than  thoao  of  a  representative,  the 
quali ligation  in  ]>oint  of  ag;e  is  raised.  A  pi'ra<»n  m%j  be  a  rejire- 
Bentative  at  twenty>live;  but  be  cannot  be  a  senator  until  thirty. 
A  similar  qualification  of  age  waa  required  of  the  members  of 
the  Boman  senata*  It  woul<l  have  been  u  somewhat  singular' 
anomaly  in  the  history  of  free  govcramcuU,  to  have  fuuud  per- 
sons actually  exercising  the  highest  functions  of  gov^rumeut, 
wh(^  iji  some  enlightened  and  pullshod  CMmlries,  would  not  be 
deemed  to  haro  arrived  at  an  age  auOicieutly  mature  to  be  enti- 
tled to  all  the  private  and  municipal  privileges  of  nuinhood.  In 
Bouie  ]>(.n-suuii  were  not  deemed  at  full  age  until  tweuty-fivo;  and 
that  continues  to  bo  the  rule  in  Frmncc  and  Holland  and  otbef 
civil-liiw  (:uiiutncji;  and  in  Prance,  by  the  old  law,  in  regard  to 
mairiuge,  full  i^  was  not  attained  until  thirty.'  It  haa  »ia06 
been  varied,  and  the  terra  diminished.* 

§  729.  The  age  of  senatoni  was  fixed  in  the  Constitulinn  at 
first  by  a  vote  of  seven  Slates  against  four,  and  finally  by  a 
unanimous  vote.*  Perhaps  no  one,  in  our  day,  is  disposed  to 
quoslioo  tJie  propriety  of  this  limitation;  and  it  is,  therefore, 
useless  to  discuss  a  point  which  U  so  purely  sjK-calative.  If 
coiuiBols  are  to  be  wise,  the  ardor  and  impetuosity  and  conHdenoe 
of  youth  must  bo  chastened  by  the  sober  lemionB  of  experience; 
asd  if  knowledge  and  solid  judgment  and  tried  integrity  ore  to 
be  deemed  indispensable  qualifications  fur  senatorial  service,  it 

wu  dfddod  by  th*  Scn>t4  timt  h«  could  not  make  ludi  an  appmabaMK.  Y%o  Tactt 
were;  thai  Mr.  I^nmftn'a  fna  of  wTria  aa  mmIot  expirad  on  (h*  UiM  of  Manb^, 
18ES.  Tbn  pTMldont  had  eonrokod  Ih*  Stnalo  W  iinM  mb  tha  fixinli  at  Hatch. 
gqrrmoT  of  Coiiuocticut,  In  Hxt  racaw  of  tha  l«gl«la|iit«  (whoau  wtaaioa  would  bo  in 
Mnjr).  on  ihe  ninth  of  tha  toKwdtnf  Tnhnitrj  afipaintnl  Mr.  Iiutinaa  h>  ■enttor.  lo 
•it  JB  the  Scnat*  an«r  Ibe  tlilnl  of  Har-k.  Tho  Srnati\  bjr  a  tMb  of  twMtj-tlirre  I 
oighlMO,  iaiAti  thnt  th«  ■)>pniiitmeiit  ooiild  not  be  conatitutionaUy  ■ado-iiiiiil  i 
the  tsM»<7  liad  •ebiall;  oOMrrvd.  Sm  Gonloa'a  Uignt  of  Uu  l^m  of  tko  Unib 
Stetw.  I«9r.  Apptsdix,  Ifol*  I,  B. 

>  1  Rmfa  Comm.  L«:t.  11.  p.  Hi. 

t  1  Btadt.  Comu.  4«3,  Mt.  *  Cods  CirU.  ait.  S8S. 

<  Jouin.  of  Coav««tl«ti,  US,  \tt. 


JHE  8ENATB. 


689 


would  be  rashness  to  affirm  that  thirty  yeara  is  too  Icmg  a  period 
for  a  due  maturity  and  probation.* 

§  730.  The  next  qualificutiun  la  citizvnahip.  The  propriety  of 
8omt'  limitation  U|>ua  adutisdiuns  to  oflivc,  after  naturalization, 
cannot  well  \tc  doubt«d.  11ic  SeiuUe  is  to  purticipittu  larpfely  in 
trauMcliona  with  foreign  governmenta;  aud  it  aocma  fndispcnaa- 
blv  (hat  time  »hoiild  have  elapsed  aiiHIcieut  to  wuan  a  senator 
from  all  prejiidir«a,  reaenUuenta,  and  partialilica,  iu  ndatiun  to 
th«  land  of  hia  nativity,  before  he  abould  bo  intru8t«d  with  auch 
high  and  delicnt«  functions.'  Besides,  it  can  acarccly  be  ]ir«- 
aiimed  that  any  foreigner  can  have  acqained  a  thorough  knowledge 
of  the  institutions  and  interetita  of  a  country  until  be  haa  been 
permanently  incorjioratod  into  ittt  aociety,  and  haa  a4'<iuired  by 
the  habits  and  iutercourw  of  life  tlie  feelings  and  tJie  duties  of  a 
dtiflen.  And  if  he  has  acquired  the  requisite  knowledge,  he 
can  scarcely  feci  that  devoted  attachment  to  them  which  coiuiti- 
tat«B  the  great  accurity  for  fidelity  and  promptitude  in  the  dia- 
charge  (rf  official  duties.  If  eminent  exceptions  could  l>e  stated, 
they  would  funiiHh  no  safe  rule,  and  eliould  rather  loach  us  to 
fear  our  being  misled  by  brilliancy  of  talcnta,  or  disinterested 
patriotism,  into  a  conlidence  which  might  betray  or  an  acgui- 
eacenoe  which  might  weaken,  that  jealousy  of  foreign  inlhienco 
which  is  one  of  the  main  supports  of  republica.  In  the  conven- 
tion it  was  at  first  propas«.'d  that  the  limitation  should  be  four 
years;  and  it  was  finally  altered  by  a  vote  of  six  States  against 
four,  one  being  divided,  which  was  aftorwarda  confirmed  by  a 
TOte  of  eight  .States  to  three.'  This  subject  has  been  already 
a<M»ewhat  considered  in  another  pinc«;  and  it  may  be  concluded 
by  adopting  the  language  of  the  Federalist  on  the  same  clause; 
"The  term  of  uiuo  years  appt^'urd  to  be  a  prudent  mediocrity  be- 
tween a  total  exclusion  of  adopted  citiiena,  whose  tu«r)t  and 
talents  may  eliiim  a  share  in  the  public  confidence,  and  an  indis- 
crimiuate  and  hasty  admiissiuu  of  them,  which  might  create  a 
channel  for  foreign  Intlucuoo  in  the  national  councils."* 
§  781.   The  only  other  qualification  ia,  that  the  senator  shall, 

>  IU«lr«B  thoCeoUiraiiMi,  37  ;  I  Kent'*  CoMin.  Loct.ll,  p.  214 ;  1  Tnek.  Dlick. 
CoinM.  A  pp.  SIS. 

*  Tbr  FoltnU*!.  No.  «. 

*  Jonrn.  oTCoaTcntian.  SIS,  S38.  3S»,  348.  349. 

*  Th*  Fnknlut,  Kol  S2 1  Bawtt  »■  lh»Cowtil»tio«,  t7 1 1  K«at'»  CMmh.  Ltet.  11. 
p.  lilt. 


640 


oossTfrcmoN  op  the  dhited  states,         [dooe  m. 


whea  elected,  be  an  inhabitant  of  tho  State  for  which  he  is 
chosen.  ThtD  scarcely  require*  noj  comment;  for  tt  is  miint- 
festly  proper  that  a  State  should  be  rcpnmcuteil  by  one  who,  be- 
oidi's  iin  intimate  knowledge  of  all  Its  wants  and  wishes  and  local 
pursuits,  should  hare  a  personal  and  iminediutc  interest  in  all 
measures  touching  its  sovereignty,  il«  rif^hts,  or  its  ioflucnca 
The  only  surprise  is,  that  proriaion  wag  not  made  for  his  ceas- 
ID);  to  represent  the  State  in  tJie  Senate  as  soon  as  he  should 
cease  to  be  an  inhabitants  There  does  not  teem  to  have  beirn 
any  debate  in  the  convention  on  the  propriety  of  inserting  the 
clause  ns  it  now  standn.  (a) 

§  782.  In  concluding  this  topic,  it  is  proper  to  remark  that 
.1|B,mwlification  whatsoever  of  propt^rty  is  established  in  rcgatd 
't^J6BStorH,  as  none  had  been  e8tabli9ht>d  in  regard  to  reprcscn* 
tatives.  Merit,  therefore,  and  talent  have  the  freest  access  0|>ea« 
to  tiiem  into  every  department  of  oflice  under  the  national  goT-j 
enuneut.  Under  such  circumatancea,  if  the  choice  of  the  peopla 
is  but  directed  by  a  snilable  sobriety  of  judgment,  the  Senate 
cannot  fail  of  being  distinguished  for  wisdom,  for  learning,  for 
exalted  patriotism,  for  incorruptible  integrity,  and  for  inllexible 
independence. ' 

§  733.  Tho  next  clause  of  the  third  section  of  tlie  first  article 
respects  the  person  who  shall  preaide  in  the  Senato.  It  declares 
that  "the  Vice-President  of  the  United  Ststes  shall  he  president 
of  the  Senate,  but  shall  ha^'e  no  rote,  unless  they  bo  equally 
divided;"  and  the  succeeding  clause,  thnt  "the  Senate  shall 
choose  their  other  officcra,  and  also  a  pn^sident  pro  tempore,  in 
the  absenee  of  the  Vice-President,  or  when  he  sliall  exercise  tb« 
office  of  President  of  the  United  States." 

§  734.  The  original  article,  aa  first  reported,  authorized  the 
Senate  to  choose  its  own  president  and  other  officers ;  and  this 
was  adopted  in  tlic  convention.'  But  the  same  draft  aulhortzrd 
tlic  president  of  tho  Senate,  in  case  of  the  removal,  death,  ri«- 
ignation,*or  disability  of  tho  President^  to  discharge  his  duties. 
When  at  a  late  period  of  the  convention  it  was  deemed  adrtaoble 

■  Sm  Tbe  F«lM<abt.  NV  97. 

■  Jounul  orCoiirMtlDii,  jtp.  S18,  340. 
*  Jovni*!  of  CoanntJoli,  326,  12Sl 

r«)  Thi8UtNauBat*diltaUuMqwlU)Mik>uaM-lnpoM4iHlNlUiM.    Beeno 


TBS  SENATE. 


Ml 


I 


tiiat  there  obould  bo  a  Vice-Prcflidentt  the  propriety  of  retaining 
him  as  presiding  officer  of  the  ^natc  seems  to  have  met  with 
general  favor,  eight  Stat«ii  voting  in  the  affirmative  and  two  only 
ID  the  negative.' 

§  785.  Some  objections  have  been  taken  to  the  appointment 
of  the  Vice-President  to  preside  in  the  Senate.  It  was  suggested 
in  the  State  conventions  that  the  officer  was  not  only  uniicees- 
sarj,  but  dangeruuB;  that  it  is  contmry  to  the  usual  counio  of 
jMirUamcntary  proceedings  to  have  a  presiding  officer  who  is  not  a 
memlK-r;  and  that  the  State  from  which  he  comes  may  thus  have 
two  votvs  itiittcud  of  une.^  It  huK  aliw  been  coldly  remarked  by 
»  Icomed  iwmmcntator  that  "  the  necessity  of  providing  for  the 
esse  of  a  vacancy  lu  the  uiTicc  of  President  doubtless  gave  rise  to 
tliu  creation  of  that  oDioer;  nud  for  want  of  something  else  for 
faiiu  to  do  whilst  thcro  ift  «  President  in  office,  be  seema  to  have 
been  placed,  with  no  very  great  propriety,  in  tho  chair  of  the 
aeualc"  = 

$  786,  The  propriety  of  creating  the  office  of  Vioo-Prcsidcnt 
will  be  rcserriMl  for  future  conaiduration,  when,  in  the  progress 
of  liiese  comuieutarics,  the  constitution  of  the  oxecuti^-e  depart- 
mODt  comes  under  review,'  The  reasons  why  he  was  authorited 
to  preside  in  tht-  Senate  belong  appropriately  to  this  place. 

§  737,  Tbere  is  no  novelty  in  the  appointment  of  a  pcnwn  to 
preside  as  spi-akcr  who  Is  nut  a  constituent  member  of  the  body 
over  which  be  is  to  preside  In  the  House  of  Lords,  in  England, 
tbe  prosiding  officer  is  the  lord  chancclior  or  lord  keeper  of  tho 
great  seal,  or  other  person  apjioiuU-d  by  the  king's  commission; 
snd  If  none  such  be  so  appointed,  then  it  ts  said  that  t)ie  Ixtrds 
may  elect.  But  it  is  by  no  means  neceasnri-  that  the  ppnton  ap- 
pointed by  the  kiug  should  be  a  peer  of  tlte  realm  or  loi-d  of  Par- 

■  Jonnul  of  CoaTentiea.  Slit.  S9S. 

*  «  EIHm'i  Dibtto,  K9.  Ml  ;  S  EDiat'>  DebdM,  S7.  St- 

■  t  ToBkcf'*  Black.  CDmni.  Apfnt.  SM  ;  Id.  IM,  900.  It  b  a  woMwkt  eotlMu  tit. 
cWMtMM  la  tlie  hii(l«i]r  «t  CongnM^  %h»t  lim  vutiaw  of  Uto  powrr  of  Um  Vk>-PiMt- 
dnil  fn  itclcBUag  •  kill  for  the  arportioonMBt  of  i^rnwrntttivn  in  ITM  bu  bera  wn- 
tmnd,  bccMM  mkIi  ■  UU  MBmed  (if  any)  alinait  exclmlr*)?  Hi  br  the  Haiut  of  Btjw 
wntdtlvM  to  imlif  upon  n  Tuck.  Blxk.  C««nin.  App.  IW.  SOO,  SK) ;  Mil  thai  a  Hk* 
Irill,  t«  itkicli  lit*  S-iMto  tntsr]MM4  a  iirooi^  opfMiikii,  In  1U3.  hi  tmn  dawMd  by 
•onis  of  III*  Slairt  m  ■mptionalk,  Ihiil  lliia  ra«ltUMe  hu  tvM  thMgbt  woitbr  of 
liigk|iml«F.  ThrnlammeimgnininwiagnaihiiooMtnm^iim^atnimolmj 
|]OW«r  ^aiaat  iU  f-tatnl  otitiljr  o>  foliirjr. 

«  Sm  3  AtMr.  UoMiua,  U7  ;  Tlw  Fedcnlkt,  So,  «L 


&43 


CONRTITDTION  OP  THE  DKITED  8TATES.  [itOOE  IIL 


liamenf  Nor  has  this  appoinlment  hy  the  king  ever  bc«n 
coi>i|>l»mei)  nf  u  a  grieTancc,  nor  has  it  operated  with  inconyen- 
inicc  or  oppreHsIoii  in  practice.  It  is,  on  the  contrary,  deec 
an  important  advantage  both  to  the  officer  and  to  the  hoii»e 
peers,  adding  dignity  and  weight  to  the  former,  and  securing 
great  Ipgal  ability  and  talent  in  aid  of  the  latter.  This  consid- 
eration alone  might  hare  had  some  inHuence  in  the  conventioo. 
The  Vice-President  being  himself  chosen  by  the  States,  might 
well  be  deemed,  in  )><)iiit  of  age,  chamctcT,  and  dignit)*,  worthy  J 
to  preside  over  the  deliberations  of  the  Senate,  in  which  the  Statca 
were  all  asserabled  and  represeuti^.  His  impartiality  in  the  dis- 
charge of  its  dutiL-s  might  be  fairly  presumed;  and  the  employ- 
ment would  not  only  bring  his  character  in  reviuw  before  tha^ 
public,  but  enable  him  to  juatify  the  (niblic  eoiilidenec,  by  per- 
foniiin^:  litH  public  functions  with  independence  and  finniieas  : 
sound  dlHcretion.  A  citizen  who  was  deemed  worthy  of  being  one 
of  the  competitora  for  the  Presidency,  could  scarcely  fail  of  being 
distinguished  by  private  virtuos,  by  comprchcunivc  acquirements, 
and  by  eminent  scrviees.  In  all  (jue^lions  before  the  Senate  he 
might  Mifely  be  appealed  to  aa  a  fit  arbiter  upon  an  equal  divi- 
aiun,  in  which  cose  alone  ho  is  intrusted  with  a  vote. 

§  I^S.    But   the   strong  motive   for  this  apjxjintment  n-as  of, 
another  sort,  founded  upon  Htate  jejilousy  and  State  equality  la] 
the  Heuato.     If  the  speaker  of  the  Senate  was  to  bo  choacn 
ita  own  members,  the  State  upon  whom  the  choice  would  fall 
might  poeaesft  eitJier  more  or  le«s  than  its  due  share  of  inBuenco.^ 
If  the  speaker  were  not  allowed  to  votei,  except  where  there 
was  on  equal  division,  independent  of  his  own  vote,  then  tlie 
State  might  lose  its  own  voice;*  if  he  were  allowed  to  give  his, 
vote  and  also  a  casting  vote,  thpji  the  State  might,  in  effect, 
scss  a  double  vote.     Either  alternative  wo4ild  of  itself  pnncnt  a 
predicament  suSiciently  embarrassing.     On  tlie   other  hand,   if 
no  casting  vote  were  allon'ed  in  any  case,  tlien  the  indecision  and 
inconvenieoee  might  be  very  prejudicial  to  the  public  interest 
in  case  of  an  equality  of  votes.'     It  might  give  rise  to  dangerous^ 
feuds  or  intrigues,  and  create  sectional  and  State  agitutiuns. 
The  smaller  States  might  well  suppose  lliut  their  intere«ts  were 
less  secure  and  less  guarded  than  they  ought  to  l»e.     Under  sneh 

1  I  Blark.  Comu.  ISl ;  3  Blkck.  Ceoin,  47  i  1  TiKk.  Muk.  Conun.  App.  Hi. 
*  Th«  FwUntUit,  Ko.  SS.  *  Ibid. 


CB.Z.] 


THE  SENATE. 


648 


I 
I 


» 


fifOiimstanCiMt,  thr  Vice-Preaident  voiiM  tie^in  to  he  thfi  mo«t  fit 
nrbitcr  to  dfi-ide,  bi-causo  h«  would  Iw  the  rppresentative,  not  of 
one  State  only,  but  of  all,  and  rnunt  be  presumed  to  feel  »  lively 
interoAt  in  promoting  all  measures  for  thu  public  good.  Thii) 
reasoning  ap{R>an<  to  have  bccu  (iccisivo  in  the  convention  and 
Mtisfactory  to  the  people.'  It  wtablishes  that  there  was  a  mani- 
fest propriety  in  rnnkini;  the  nrraii^ment  coiiduei>-e  to  the  bar- 
mony  of  the  Htatcs  and  the  dignity  of  Ihv  general  government. 
And  ag  the  Senate  poflsesscs  the  power  to  make  ralc«  for  its  own 
proceedings,  there  is  little  danger  that  there  can  c^'er  ariBt-  any 
abniw  of  the  preniding  power.  l*hc  danger,  if  any,  ia  rather  the 
other  way,  that  the  presiding  power  will  1*0  either  silently  weak- 
ened or  openly  surrendered,  bo  as  to  leave  the  office  little  more 
than  the  barren  honor  of  a  place,  witJiout  influence  and  without 
action. 

§  789.  A  (jncBtion  involving  the  anthority  of  the  Vice-Presi- 
dent, as  presiding  officer  in  the  Senate,  has  been  ranch  discussed 
in  consequence  of  a  decision  recently  made  by  that  officer. 
Hiltcrto  the  power  of  preserving  order  during  the  deliberations 
of  the  Senate,  in  all  cosca  where  the  niles  of  the  innate  did  not 
specially  preserit>e  another  mode,  had  iM'en  silently  suppost^d  to 
belong  to  the  Vice-President,  as  an  incident  of  office  It  had 
never  been  doubted,  much  leas  denied,  from  the  first  organiKation 
of  tlio  Senate;  and  its  existence  had  l>een  assumed  as  an  inhe- 
rent quality,  constitutionally  delegated,  subject  only  to  such 
rules  as  the  Henate  should  from  time  to  time  prescribe  In  the 
winter  session  of  1826,  the  V ion- President  decided,  in  effect, 
that,  as  president  of  the  Senate,  he  had  no  power  of  preserving 
order,  or  of  calling  any  raemlKT  to  order,  for  words  spoken  in 
the  coorse  of  debate^  upon  hia  own  authority,  but  only  so  for  as 
it  was  given  and  regulated  by  the  ndes  of  the  Senate.'  This  was 
a  virtual  surrender  of  the  presiding  power  (if  not  universally,  at 
least  in  that  case)  into  the  hands  of  Ihe  .Senate,  and  disarmed 
the  officer  even  of  the  power  of  aelf-prolection  from  insult  or 
abuse,  unless  the  Senate  should  choose  to  make  provision  for 
it.  If,  therefore,  the  Senate  should  decline  to  confer  the  power 
of  presen-ing  order,  the  Vice-President  might  become  a  more 

I  S  EUiot'i  tycbBtn,  SS9.  MCi  Ml  i  S  BUiot'i  Dftatei,  S7.  SS.  SI.  U. 
*  1  Xmi-ricut  Aimiul  Brgiitcr,  M,  S7  |  8  Aaericaa  AdiioiJ  Bcgiiter,  SB  {  4  EUiot'i 
D«l»t«^Sllu>31». 


544 


CONSTTTCmON   OP  TBB  OTdTED  STATES.  [BOOK  IJU 


paj^cimt  and  cipher  in  that  bodjr.    If,  indeed,  the  Vioe-Pre«idcnt 
had  not  this  power  virtvu  officii,  there  mut  nothing  to  pr 
the  Senate  from  conliding  it  to  anj  othi;r  officer  chonen  by  itBclf. , 
Xaj,  if  the  pover  to  preside  had  not  this  incident,  it  w«g  diffi* 
cult  to  perceive  whnt  other  incident  it  had.     The  power  to  put 
qtieations  or  to  declare  Totes  might  jtiat  aa  well,  upon  aimilar^ 
reasoning,  he  denied,  unlesii  it  waa  express);  conferred.     Hie' 
power  of  the  Senate  to  prescribe  rules  could  not  be  deemed  om- 
nipotent     It  must  be  conatrued  with  reference  \o,  and  in  con- 
nection with,  the  power  to  preside;  and  the  latter,  according  to 
the  common-iM^nac  of  mankind  and  uf  public  bodies,  waa  alwaja 
understood  to  include  tlio  power  to  keep  order,  upon  the  clear 
fTfuund  that  tlie  grant  of  a  power  includes  the  authority  to  make ; 
it  cfleetuul,  and  aUo  of  8clf>preservaiiun. 

§  740.  The  subject  at  tliat  time  attracted  a  good  deal  of  dia- 
cussion,  and  was  finally,  bb  a  practical  inquiry,  put  un  end  to  in 
1828,  by  u  rule  made  by  the  Senate,  Uiat  "every  quueliiHi  of 
order  ahall  be  decided  by  the  president  without  debate,  subject 
to  appeal  to  the  Senate. " '  Hot  still  the  question,  as  one  of  con- 
stitutional right  and  duty,  liable  to  be  regulated,  but  nut  to  bo 
destroyed,  by  the  Senate,  deeerres  and  should  receive  the  musti 
profound  investigation  of  every  man  solicitous  for  the  permancait 
dignity  and  independence  of  the  V ice-Presidency. ^ 
^  S  741.  'Die  propriety  of  intrusting  the  Senate  with  the  choice 
of  its  other  ofhrers,  and  also  of  a  president  pro  ttntptre  in  the 
absence  of  tlie  Vice-President,  or  when  be  exercises  (lie  office  of 
President,  seema  never  to  have  been  questioned,  and  indeed  ta 
so  obvious  that  it  is  wholly  unnecessary  to  vindicate  it>  Confi- 
dence between  the  Senate  and  its  officers,  and  the  power  to  make! 
a  suitable  choice  and  to  secure  a  suitable  responsibility  for  tb«' 
faithful  discharge  of  the  duties  of  offiee,  are  so  indis]>eusablu  for 
the  public  f!Ood  that  the  provision  will  conunand  universal  assent 
OS  soon  us  it  is  mentioned.  It  bus  grown  into  a  general  practice ' 
for  the  Vice-President  to  vacate  the  aenatorial  cliaira  short  time 
before  the  torniiuation  of  each  session,  in  order  to  enable  the 
.Senate  to  choose  a  president  pro  temport^  who  might  already  be 
in  office  if  the  Vice-President  in  tlie  recess  should  be  called  to 
the  chair  of  state.  The  practice  is  founded  in  wisdom  and  ftnimd 
policy,  a<  it  immediately  prondes  for  an  cxif^ency  which  may 
1  9  Amtrkaa  AnnoaJ  tUtprtcr,  »P.  *  S«c  JoffcrMn*  Uuul.  ft  1»,  17. 


TBB  SENAT& 


&4& 


N 


well  bo  expected  to  occur  ot  any  time,  00-1  prcventii  the  choice 
from  being  influciiovd  bjr  tcmpurary  cxcitciucnU  or  iDtrigues 
arising  fruin  Ibo  actual  existcm-v  of  ft  vncancy.  As  it  ]»  tisofiil 
in  peuoe  tu  provide  for  war,  so  it  is  likewise  useful  in  tiinea  of 
profmmd  tranquillity  to  provide  for  political  agitations  wkicli 
may  disturb  lliu  public  borrauny. 

$  742.  The  next  cl»u»c  of  the  tJiird  Bection  of  the  first  article 
r«8pect«  tJie  subject  of  impeachment.  It  is  aa  follows:  "Tlie 
Senate  shall  have  the  eole  power  to  try  all  impeachments.  When 
sitting  for  that  pttrpose,  they  shall  be  on  oath  or  affinnation. 
When  the  Freiiiileut  of  the  United  States  is  tried  the  chief  jus- 
tice flhall  preside.  And  no  person  shall  be  convicted  without 
the  concurrence  of  two-thirds  of  the  mcmlwrs  present,  "" 

§  748.  Upon  the  subject  of  impeachments  somcthiug  has  al- 
ready been  said,  in  treating  of  that  branch  of  the  Constitution 
which  delegates  to  the  House  of  Representatives  the  sole  power 
of  impeachment.  Upon  the  propriety  of  delegating  the  power  it 
in  unnecessary  to  cnlai^  But  the  next  inquiry  naturally  pre- 
sented ia,  by  what  tribunal  shall  an  im)>pachment  he  tried  ?  It 
is  obviously  incorrect  in  theory,  and  against  the  general  princi- 
ples of  justice,  that  the  same  tribunal  shonid  at  once  be  the  ac- 
cusers and  the  judges;  that  they  should  first  decide  upon  the 
verity  of  the  accusation  and  then  try  the  offenders.'  The  first 
object  in  the  administration  of  justice  is,  or  ought  to  l>e,  to  se- 
cure an  im)mr1iat  trial.  This  is  so  fundamental  a  nile  in  all 
rupublicsn  governments  that  it  can  require  little  reasoning  to 
support  it;  and  the  only  surprise  is,  that  it  could  ever  have  been 
overlooked. 

§  744.  The  practice  of  impeachments  seems  to  have  been  ori- 
ginally derived  into  the  common  law  from  the  GemumSt  who,  in 
their  great  councils,  sometimes  tried  capital  accusations  relating 
to  the  public.  XiVtff  apud  toncitlum  a^rutarf,  qiioque  el  diterimen 
eapitU  intrndere.*  When  it  was  adopted  in  &)g)aod  it  received 
material  improvtmcnia.  In  Germany,  and  also  in  the  Grecian 
and  Romau  f-piiblieK,  the  pi-oplc  wen-  iit  the  same  time  the  ac- 
cusers iiml  the  jiidg^Ts;  thus  trumpltng  down  at  tho  outset  the 
best  safeguards  of  tlie  right«  and  lives  of  the  citizens.^    But  io 

t  Kawlt  on  CwuL  eh.  tt  PP>  30».  SIO: 
*  <  Blud^  CeniM.  1«0.  TkIi.  d*  Morih.  Gtm.  IS. 
■  4  nikck.  dtam.  »I  -,  2  WiIno*  Lo  Leet.  1«,  X«i.  IM. 
TOl.  I.  —  Z& 


546 


CONSTITUTION  OP  TDE  (TNITBD  STATBa.  [bOOE  Itt. 


England,  the  Hniue  of  Commons  is  invested  with  the  sole  pover 
of  impeachment,  and  the  House  of  Lords  vich  the  sole  power  of 
trial.  ThuH,  a  tribunal  of  high  dignity,  independence!,  and  in- 
telligence, and  not  likely  to  ho  unduly  awaycd  by  the  influence 
nf  popular  opinion,  ia  entahlished  to  protect  the  accused  and  se- 
cure to  him  a  favorable  hearing.'  MontciU(iiieu  has  deemed  such 
a  tribunal  worthy  of  the  bif^best  praise.^  Macbiavcl  haa  ascribed 
the  ruin  of  f  h«  republic  of  Florence  to  the  want  of  a  mode  of  pro- 
viding by  imiieachrnvnt  ngaioat  those  who  ofTviidM)  against  the 
8tat«.  An  AmL-ricati  oommvntutor  has  huzard<.'d  the  extraordi- 
nary remark  that^  "If  Uic  wunt  of  a  prupL-r  tribunal  fur  the  trial 
of  impcuchmmit^  can  endanger  the  liberties  of  th«  (Juitcd  8t 
some  future  Muehiuvcl  may  jicriiaps  trace  their  destniction  to  the 
aamc  sourco."*  The  model  fron^which  the  national  court  of  im- 
I)cavhtneot«  is  borrowed  is,  dou)>tloss,  that  of  Great  Britain;  ao4] 
a  similar  eonittit-utional  distribution  of  the  power  exists  in 
of  the  StalL-  guviTnm*>nts.* 

§  745.  Tlie  great  objects  to  be  attained  in  the  selection  of  a 
tribunal  for  the  trial  of  iniijeachments  are  impnrtiaiity,  integrity,, 
intelligence,  and  indejiondenco.  If  either  of  these  ia  wanting, 
the  trial  must  be  radically  imperfect.  To  insure  impartiality, 
tJie  body  must  be  in  some  degree  removed  from  [>oi>iilar  powe 
and  passions,  from  the  influence  of  sectional  prejudice,  and  from* 
the  more  dangerous  inHueiice  of  mere  party  spirit  To  secure 
integrity,  tbei'e  must  be  a  lofty  sense  of  <luty  and  a  deep  res|i 
sibility  to  future  timca  as  well  as  to  Qod.  To  secure  intelUgenca,] 
there  must  )>o  age,  expcrienon,  and  high  intellectual  powers 
well  as  nttainmenta  To  secure  independence,  there  must  lie 
numbers  aa  well  as  talents,  and  a  confidence  resulting  at  oncv 
from  permanency  of  place  and  dignity  of  station  and  enlighleniKl 
patriotiam.  Does  the  Senate  combine  in  a  suitable  degree  all 
these  qunlirtcationa  ?  Dues  it  combine  them  mure  perfeelly  than 
any  other  tribunal  which  could  be  constituted  ?  What  other  txi- 
bunal  cmild  be  intrusted  with  the  authority  7  These  are  questions 
of  the  highest  importance  and  of  the  most  froqii'-nt  occurrence,^ 
They  arose  in  the  convention,  and  underwent  a  full  diBL-nasit 


■  4  Bhclc  CoiDin.  S6I  ;  but  h«  Palej't  Hon!  PUkaophf .  B.  «,  di.  S :  I  WOmii*! 
Law  I«ct.  tM.  45L 

*  Manioq.  Sfdrit  of  Lain,  B.  11,  cb.  8. 

•  1  Tuclwr'i  lilKk.  CocDm.  Aj^i.  3I&.  •  Tlio  FnUnUil.  Xo.  U,  «fl. 


TOE  BCKA-rc. 


547 


^ 


tliere.  They  v^re  again  deliberately  debated  in  the  State  coo- 
ventions;  und  thvj  liavc  bven  at  various  tintca  flinc«  agitated  by 
juriHts  and  Htutc«mcn  and  jwlitical  bodiea.  Few  parts  of  the 
Coniititutiuii  buve  been  assailed  with  ooore  vigor,  and  few  have 
been  di-fended  witli  more  ability.  A  learned  coiumentator,  at-  a 
coneidiTiiblu  distance  of  time  after  the  ado{>tion  uf  the  Constitu- 
tion, did  not  seniple  to  declare  that  it  wa«  a  must  inurdiuat« 
powLT,  aud  in  some  iuittaaces  utterly  inco«){Mit  ible  with  the  other 
{mictions  of  tbe  Senate;'  and  a  similar  opinioo  has  often  been 
propagated  with  an  abundance  of  zeal.*  Tlie  joiinial  of  the  con- 
vention lieara  testimony  also  to  no  inconsiderable  diversity  of 
judgment  on  the  subject  in  that  body. 

§  14Ct.  The  subject  is  itself  full  uf  intrinsic  difficulty  in  a  goT> 
ernmeiit  purely  elective.  The  junsdiction  is  to  bo  exercised 
over  offences  which  are  committed  by  public  men  in  notation  of 
their  public  trust  und  duties.  I'hosc  duties  are  in  many  cases 
political;  aud,  indeed,  in  other  cases,  to  which  the  power  of 
impeachment  will  prob«b1y  bo  applied,  tboy  will  respect  fuoc* 
tionariea  of  a  high  charuct«r,  where  the  remedy  would  otherwise 
be  wholly  iuudeijnute,  and  (he  grievouci;  be  inca|>ablo  of  redress. 
Strictly  speaking,  then,  the  power  partakes  of  a  (xilitical  charac- 
ter, 08  it  reajx'cts  injuries  to  the  society  in  its  political  character; 
and,  on  this  uooount,  it  requires  to  be  guarded  in  its  e\t-rcise 
against  the  spirit  of  faction,  the  iututersnce  of  jiarty,  aud  (he  sud* 
den  movemonis  of  popular  feeling.  The  prosecution  will  seldom 
fail  to  agitate  (he  jmsiBions  of  the  whole  coimuuiiily,  and  to  divide 
tt  into  parties,  more  or  less  friendly  or  hostile  to  the  accused. 
Tlic  prejis,  with  its  unsjiaring  vigilance,  will  arrange  itself  on 
citlter  side  to  coutrol  and  Intluenoc  public  opinion ;  and  there  will 
always  be  some  danger  that  the  decision  will  be  regulated  more 
by  the  comjiarativo  strength  of  parties  than  by  Uie  real  proofs  of 
innocenoo  or  guilt.* 

§  747.  On  the  other  himd,  tlio  deiicacy  and  ntagnitudo  of  a 
tntst  which  so  deeply  concerns  the  poIi(icaI  existence  and  repu- 
tation of  every  man  engaged  in  the  administration  of  public 
affairs  cannot  be  overlooked.*    It  ought  not  to  be  a  power  so 


■  1  TncluT'*  BWk.  Coook.  An>.  300 1  Id.  SU,  SM,  U7. 

*  S  Amnr.  MiiKum,  blS  ;  I  Amer.  Uiwcain.  71  ;  Tbn  Frltnlut,  Xok  C5,  M  :  1  Tttck. 
Bbak.  Ciiciiii.  Ji]ip.  337  :  Jour.  «f  ConnaUoo,  SufipbaMat,  ff,  435,  tXt. 

•  Tl>*  FBl«nli.i,  No.  M.  «  Id.  New  U ;  S  WilMm't  Uw  Ud.  IK. 


&48 


COSSTITtmON  OP  THE  DXITED  STATES.  [BOOK  m. 


Operative  ftnd  tiiatant  that  it  may  intimidate  a  modest  and  con-^ 
aciontioiu  Btstcuman  or  other  functioanry  from  accepting  offi«ej 
nor  so  weak  and  torpid  us  to  bo  oapubli;  of  liillini^  offL-ndcra  in(d' 
a  general  security  and  indifTorcuuc.  Tlic  dilTictiltj'  uf  placing  it 
rightly  ID  a  gorcnimcat  resting  entirely  on  the  basii)  of  period- 
ical  elections  will  be  tnoro  strikingly  perceived  n-licu  it  is  cou- 
sEdcred  that  tho  ambitious  nnd  th«  cunning  will  often  maki 
strong  iiccuMtions  against  public  men  tlic  means  of  tlieir 
elevation  to  oflicp,  and  thus  give  an  impulse  to  the  pover  of  im- 
peachment by  priHtccupyiiig  the  public  opinion.  The  convention 
appears  to  have  bei>n  very  strongly  impressed  with  the  difliculty 
of  constituting  a,  suitable  tribunal,  and  finally  ctune  to  the  reiiull 
that  the  >'«nate  was  the  most  fit  depositary  of  tJiis  exalted  trust.' 
In  so  doing  they  had  tlie  example  before  them  of  several  of  the 
best  considered  StAte  constitutions;  and  the  example,  in  somo;^ 
measure,  of  Crcat  Britain.  The  laont  strenuous  o|>ponent  can< 
not,  therefore,  allege  that  it  was  a  rash  and  novel  experiment; 
the  most  unequivocal  friend  must,  at  the  same  lime,  admit  that 
it  is  not  free  from  alt  plauaiblo  objections.' 

§  7-18.    It  will  bo  well,  tJiorefore,  to  reviev  the  ground,  and 
ascertain  how  far  the  objections  are  well  founded,  and  whether 
any  other  scheme  would  have  been  more  nnt>xce[>« ionnblo,     Thaj 
principal  objections  were  as  follows:  1.    That  the  pruvittion  ood>' 
founds  the  lefpulative  and  judiciary  authorities  in  the  same  body, 
in  violation  of  the  well-known  maxim  which  rrri)uires  a  aepara-i 
tjon  of  tliem.     2.    That  it  accumulatt^  an  undue  proportion 
power  in  the  Senate,  which  haa  a  tendency  to  make  it  too  eristo* 
cralic.     3.    That  the  cfRciency  of  the  court  will  be  impairw]  by 
the  circumatanco  that  the  Sonalo  haa  an  agency  in  appointment 
to  office.     4.   That  its  efltcioncy  ia  still  further  impaired  by  its 
participation  in  the  functions  of  the  treaty-makinR  power.' 

§  749.  The  Grst  objection,  which  relates  to  the  supposed  neces- 
sity of  an  entire  separation  of  the  legislative  and  judicial  powers, 
has  been  already  discussed  in  its  most  general  form  in  annther 
place.  It  has  been  shovi-n  that  the  maxim  does  not  apply  to 
partial  intermixtui-os  of  these  powers;  and  that  such  an  inter- 
mixtui-e  is  not  only  unobjcctionablo,  but  is,  in  many  cases,  indis- 
pensable for  the  purpose  of  preserving  the  dtio  indojK*ndencc  of 
the  different  departments  of  government,  and  their  harmony  and 

t  Tk  FalMilU,  K<M.  «5,  Sfl.  *  Tbc  PalmUtt,  Ho,  ««. 


CB.X.] 


TBK  SENATE. 


MB 


I 


healthy  operation  in  the  adTancctnent  of  the  public  intereata  and 
Uic  praMTvatiou  of  the  public  liljcrtics,'  Tlie  ijueatiun  ift  not  ao 
much  whi'thcr  any  iatormixturo  is  ulluvable,  as  whether  the  in* 
tcrmistuiv  of  the  aiitlioril}'  to  try  itD|icuchiuctit«  with  the  other 
fuQC'tiuim  u(  the  Sviialo  ia  aututury  uiiil  ii^cfal.  Now,  nome  of 
thc«c  fiitictioiis  conatitiitc  a  sound  dmuioi)  for  the  investment  of 
the  i)owor  in  this  bmiich.  Th«  offuiiwa  wliich  the  (wwer  of  im- 
peachment is  designed  principally  to  reach  are  those  of  a  politi- 
cal or  of  a  iudie.ial  character,  llicy  arc  not  tliose  which  Ho 
within  the  scope  of  the  ordinary  iiiiinicipal  jurisprudence  of  a 
country.  Tliey  are  founded  on  difTcreiit  principles,  are  govcnicd 
bydiEToreut  maxiios,  are  directed  to  different  objects,  and  require 
different  remedies  from  those  which  ordinarily  ap)ily  to  crimes.' 
80  far  as  tlicy  arc  of  a  judicial  character,  it  is  obriougly  more 
safe  to  the  public  to  confide  them  to  the  Senate  than  to  a  mere 
court  of  law.  The  Scnat*!  may  be  presumed  alwaya  to  contain  a 
number  of  distitifniisbcd  lawyers,  and  probably  some  persona  who 
hare  held  judicial  stations.  At  the  same  time  thoy  will  not  have 
any  undue  and  immcMliatc  sympathy  with  the  accused  from  that 
common  professional  or  corporation  spirit,  which  Ss  apt  to  per- 
vade tbiise  who  are  eng:agi>d  in  similar  pursuits  and  duties. 

§  750,  In  regard  to  political  offences,  the  selection  of  the  sea- 
fttora  hits  some  positive  ndvantn^ea.  In  the  drat  place,  they  may 
he  fairly  prtvumod  to  have  a  more  enlarged  knowlc^lge  than  per- 
00ns  in  olher  aituations,  of  political  functions  and  titcir  difficul- 
tira  and  embarrasamenta ;  of  the  nature  of  diplomatic  ri^'hls  and 
duties ;  of  the  e.xtent,  limits,  and  variety  of  executive  powers  and 
operations;  and  of  the  sources  of  involuntary  error  and  unde- 
si^ed  excms,  as  contrudislinguiHhi.-d  front  those  of  meditated 
and  violent  disregard  of  duty  and  rigtit.  On  the  one  hand,  this 
very  experience  and  knowledge  will  bring  them  to  the  trial  with 
o  spirit  of  candor  and  intelligence,  and  an  ability  to  comprehend 
and  scnitiniio  the  charges  against  tlie  accused;  and,  on  the  other 
hand,  Ihcir  eonnectioo  with,  and  dependence  on,  the  States,  will 
make  them  feel  a  just  regard  for  the  defence  of  the  rigli1»  and 
the  interests  of  the  Htalcs  ond  the  people.  And  this  may  prop- 
crly  lead  to  another  remark ;  that  the  ]>ower  of  impeachment  is 
peculiarly  well  fitted  to  be  left  to  the  final  decision  of  a  tribunal 

>  AbI*,  Vol.  £,  I  SS4  U>  510  ;  llairli  o«  Coiwtituliaa.  «lt.  tl,  p.  S13. 
•  1  WilMo'i  U«  Uck  tSI,  US. 


li 


sso 


CONSTITtmON   OF  THB  tTNTTED  STATES.  f  BOOK  nu 


tiMbpoidd  of  rc|>ri-8cuiativeii  of  nil  th«  Statei,  hftWnK  a  common 
iiitemito  mftiiitaiii  tlic  lighttt  of  all,  and  yet  Im^vdikI  the  reach 
of  local  and  sectionnl  prejudicvs.  Surely,  it  will  not  readily  lie 
Admitted  b;  the  Kealontt  defenders  of  ^tate  rights  and  Rtat«  jeal^ 
ousies,  that  the  power  ia  not  safe  in  tlie  hands  of  all  the  Stat 
to  bo  used  for  their  own  protection  and  honor. 

§  7M.  The  next  objection  regards  the  undue  aecuntulation 
power  in  tlie  Senate  frwn  thi»  source  connected  vith  other 
HourceB.  So  far  M  any  other  powers  are  incompatible  with  and 
obatnictive  of  the  proper  escrcise  of  the  power  of  impeachment, 
they  will  fall  under  consideration  under  another  head.  But  it, 
iii  not  eafty  to  perc;eive  what  the  precise  nature  and  extent  of 
objection  is.  What  is  the  due  meaaure  or  criterion  of  piiwer  lo 
be  given  to  the  Senate?  What  ia  the  standard  which  is  to  be., 
assumed  ?  If  we  ar«  to  regard  theory,  no  power  in  uny  dep«r 
mcnt  of  gorernment  ia  undue,  which  is  safe  aud  useful  in  its  act- 
ual operations,  which  is  not  dangerous  in  its  form,  or  too  wide 
Jo  its  extent.  It  is  incumbent,  tbon,  on  those  who  press  the  ob 
jcction,  to  establish  by  some  sound  reasoning  that  tho  power  ia 
not  safe,  but  mischievous  or  dangerous.'  Now,  the  power  of  im- 
peachment is  nut  one  expected  in  any  government  to  be  in  con- 
stant or  frequent  exercise.  It  is  rather  intended  fur  occaaitmal 
and  cxtraordinarj-  cast-it,  where  a  superior  power,  acting  for  the 
whole  people,  is  put  into  operation  Ut  protect  their  Hghta,  and 
to  rescue  their  liberties  from  violation.  Such  a  power  canno^ 
if  its  actual  exercise  is  properly  guarded,  in  the  bands  of  func- 
tionaries responsible  aud  wise,  be  justly  said  to  be  unsafe  or 
dangerous  1  unless  wo  are  to  say  that  no  power  which  is  liable  to 
abusi!  should  be,  under  any  circumstances,  delegated.  The  sei 
atora  camiot  be  presumed,  in  ordinary  decency,  not  to  be  a  body^ 
of  BufHcient  wisdom  to  be  capable  of  executing  the  power;  and 
their  rcspongibility  arises  frum  the  moderate  duration  of  their 
office,  and  tlieir  general  staite  in  the  interests  of  the  eomniUDity, 
08  well  as  their  own  sense  of  duty  and  reputation.  If,  passing 
from  theory,  resort  is  had  to  the  history  of  oilier  governinonis, 
there  is  no  reason  to  suppose  that  the  jiossesiiion  of  the  power  of 
trying  impeachments  has  ever  Iwen  a  source  of  undue  aristocrati- 
cal  authority  or  of  dansrcrous  influence.  The  history  of  fJreat 
Britain  has  not  cstablislicd  that  the  House  of  Lords  has  become  a 
t  Vm  TtdmliO,  No.  M 


TDE  BEKATE. 


£51 


^ 


I 


^ 


dangerous  depositary  of  influ«nce  of  any  sort  from  iU  being  a 
high  <:ourt  of  iiDpeachmentB.  If  tho  power  of  Jm{*enchiiieiit  has 
ever  been  abused,  it  has  not  tmnipled  iipoii  popular  rtghte.  If  it 
has  fltruck  down  high  victimti,  it  hA)i  foliow«d,  rather  than  led, 
tho  |>oputar  opinion.  If  it  has  been  an  inalnmient  of  injustice, 
it  has  been  front  yielding  too  much,  and  not  too  little.  If  it  has 
eometimca  auETcrcd  an  offender  to  escape,  it  baa  far  more  fre- 
iguontly  purilicd  the  fnuntaind  of  justice,  and  brought  down  the 
favorite  of  euurta  and  the  pervertor  of  patronage  to  public  hu- 
miliation and  diit^^ee.  And,  to  bring  the  caae  home  to  our  own 
^tute  i^vcmmviilii,  tho  power  in  our  State  senates  has  hitherto 
been  without  don^vr,  though  certainly  not  without  efficiency. 

§  752.  The  next  objection  is,  that  the  power  is  not  ofReient  or 
safe  in  connection  with  the  afiency  of  the  Senate  in  appointmenta. 
11ie  argument  la,  tlutt  senators  who  lutvo  concnrrud  in  an  ap- 
pointment will  be  too  tndul^'nt  judges  of  the  conduct  uf  the  men 
in  wliose  cflicient  creation  they  have  iHirtioi[K)ted.'  The  same 
objection  lies  with  equal  force  against  mil  )|Overnmenls  which 
intrust  the  ]iower  of  appointment  to  any  persons  who  hare  a  right 
to  remove  tliem  at  pleaaure.  It  might  id  such  cases  be  urgod 
that  the  fat'oritism  of  the  nppointcr  would  always  screen  Ui«  mis- 
bchavinr  <if  the  appointee*.  Yet  no  one  doubts  the  lilneiia  of  in- 
tnisting  such  s  (lower;  and  confidence  is  re|>08bd,  and  prufterly 
reposed,  in  the  character  and  responsibility  of  those  who  make 
the  appointment'  The  objection  is  greatly  diminished  la  its 
force  by  the  consideraticm  that  the  Senate  has  but  a  slight  par- 
ticipation in  the  appointments  to  ofHce.  The  President  is  to 
nominate  and  appoint;  and  the  Senate  are  called  ugion  merely  to 
confirm  or  reject  the  nomination.  They  have  no  right  of  choice, 
and  therefore  must  feel  less  solicitade  as  to  the  individual  wlto 
is  appointed.*  But,  in  fuct,  the  objection  is  itself  not  well 
founded;  for  it  will  rarely  oceur  that  the  persona  who  have  con- 
curred in  the  appointment  will  be  members  of  the  Senate  at  tlie 
time  of  the  trial.  As  oac-third  is,  or  may  be,  chanitod  every 
two  years,  the  case  is  highly  improbable;  and  still  more  rarely 
can  the  fact  of  tJio  ap|)ijinlment  operate  upon  the  minds  of  any 
considerable  number  of  the  senators.  What  iMssibtc  operation 
Id  it  bare  upon  th«  judgment  of  a  man  of  reasonable  intoUi- 


>  The  PMUntiat.  Ko.  64. 
■  lUO. 


•  IIU. 


5S2 


COSSTITUnON   OP  THE  tmiTED  STATES.  [BOOK  HI. 


gcuce  Kod  integrity,  tbitt  be  h&d  as9ent«d  to  the  Appointment  uf 
any  iDdividiml  of  whom  ho  ordinarily  could  have  little  or  no  per- 
sonal  knowledt^^^  and  in  trhoAe  appnintnient  ho  hod  coiicurr 
upon  the  jud^^uaent  and  recoiiiniendation  of  others?  Sndi  . 
intlucuce  in  too  remote  to  be  of  mucb  weight  in  human  affairs : 
and,  if  it  exiatei  at  all,  it  is  too  common  to  form  a  just  exception 
to  the  competency  of  any  forum, 

§  758.  The  next  objection  is  to  the  inconvenience  id  the  union 
of  the  power  with  that  of  making  treaties.  It  has  been  stmniily.. 
urged  that  ambosaadors  arc  appuinted  by  the  Preaident,  with  tliS" 
concurrence  of  the  Sonabe;  and  if  be  makea  a  treaty  wliich  is 
ratified  by  two-thirds  of  Uic  Senate,  however  corrupt  or  est-ep- 
tionablc  his  couduet  may  have  boon,  tlicre  can  bo  little  ehancc  of 
redress  by  an  impeachment  If  the  treaty  he  ratified,  and  tlw 
minixter  ^x:  impL-actiu']  fur  concluding  it  because  it  i»  dcnif^mtory 
tu  the  hunur,  the  interent,  or  perhaps  to  the  sowreiguty  of  tlie 
nation,  who  (it  is  said)  arc  to  be  his  judges?  'Ilie  Seiuito,  by 
wlium  it  hiM  been  approved  aitd  ratified?  If  the  Frcitldeut  be 
impeaolied  for  giving  impro|>cr  instructions  to  the  minister,  aud^ 
for  ratifying  the  treaty  pursuant  to  his  iustnictions,  who  arc 
be  his  judges  ?  Tlio  Seiialc,  to  whom  the  treaty  has  been  sob- 
mitted,  and  by  whom  it  has  been  approved  and  ratified  ? '  This 
would  be  to  constitute  tJie  senators  tlicir  own  judgra  in  every 
case  of  a  corrupt  or  pcriidious  eitecution  of  their  trust' 

§  7^4.  Such  is  the  objection  pressed  with  unusual  earnestness, 
and  certainly  having  a  more  plauttible  foujidation  tluin  uilhcr  uf 
the  preceding.  It  preaupposes,  however,  a  stato  of  facts  of  a 
very  extraordinary  cliaracter,  and,  having  put  an  extreme  coae, 
argues  from  it  against  the  propriety  of  any  delegation  of  the 
power  which  in  such  a  cose  might  be  abused.  This  is  not  Jnst 
reasoning  in  any  case,  and  least  of  all  in  cases  reHfuvling  thepoi< 
ity  and  organixation  of  governments :  for  in  all  such  canea  there 
must  be  power  reposed  in  some  person  or  body,  and  wherevor 
it  is  reposed  it  may  bo  abused.  Now,  the  ease  put  is  eitJier  one 
where  tlie  Senate  bus  ratified  an  appointment  or  treaty,  inno- 
cently  believing  it  to  be  UDOXceptiousble  and  beneficial  to  the 
country,  or  where  the  Senate  has  corruptly  ratified  it,  and  basely 
betrayed  their  trust-  In  tlie  former  case,  the  Senate  having 
acted  with  fidelity,  according  to  their  best  sense  of  duty,  would 

>  1  TiukM*  Bkok.  Cacnn.  Afp.  33f,  83<.  *  The  F«d«i«lfat,  Ko.  OS. 


CB.  X.] 


THE  SBN'ATB. 


65S 


I 
I 


foci  no  sympathy  tor  a  corrapt  executiro  or  minister  who  bad 
acted  with  fraud  or  dishonor  unknown  to  tlicin.  U  the  treaty 
were  good,  they  might  still  desire  to  punish  thusc  who  had  acted 
busely  or  corruptly  in  nvgotiatitig  it.  If  bud,  they  would  feel 
indif^natiuu  for  the  itnpottitiun  procti^vii  upon  thvm  by  an  vxvca- 
tfvu  or  minister  in  whom  thuy  plooud  contidouco,  inxtoad  of  Bvm- 
patliy  for  his  misconduct.  Tliey  would  fuel  that  thoy  had  bc«u 
bctra^-od  into  an  orror,  and  would  nithor  have  a  bius  against 
than  in  favor  of  t]io  deceiver. 

§  765.  If,  un  the  other  hand,  t)ie  Senate  had  corniptly  assented 
to  the  appuinluK-iit  aiid  tre-nty^  it  is  certain  that  there  wuuld  he 
DO  efTectiinl  remedy  by  im))cachmcnt  so  long  as  the  same  persona 
romained  members  of  the  8ennt«.  But  even  here  two  years 
might  remove  a  larire  number  of  tlie  guilty  oonspimtors,  and 
public  indignntion  would  probably  oomi)cl  the  resignation  of  all. 
But  is  snrh  a  case  siippoenblet  If  it  ix*.  then  there  are  others 
quite  within  the  same  range  of  supjxKiition,  and  equally  mis- 
ohievous,  for  which  there  can  be  no  remedy.  SupjMge  a  majority 
of  the  Senate  or  House  of  Representatives  corniptly  pass  any 
law,  or  violate  the  Constitution,  where  ie  the  remedy?  Suppose 
the  House  of  Representatives  carry  into  effect  and  appropriate 
money  corruptly  in  aid  of  such  a  corrupt  treaty,  where  is  the 
remedy  t  Why  might  it  not  be  ax  well  ur|!t-d  that  tlio  Ilouse 
of  Ropreaentuthx-s  ought  not  tu  be  intrusted  with  tlie  power  of 
impenchmout,  because  they  might  corruptly  concur  with  the  es- 
Acutlvc  in  an  injurious  or  unconslilntional  measure,  or  might 
corniptly  aid  the  execnti>-e  in  negotiating  a  treaty  by  public  re- 
solves or  secret  inatructtomi  ?  Tlie  truth  is,  that  all  arguments 
of  this  sorl,  whfeh  suppose  a  combination  of  the  puMic  function- 
aries to  cirstroy  (be  liberty  of  the  people  and  the  powers  of  the 
government^  are  so  extravagant  tliat  they  go  to  the  overthrow  of 
all  delegated  power;  or  they  are  no  rare,  and  remote  in  practice, 
that  they  ought  not  to  enter  as  elements  into  any  Btnicturc  of  a 
free  government.  The  Constitution  supposes  that  men  may  lie 
tmated  with  power  under  reasonublc  gtiurds.  It  presumes  that 
the  Senate  and  the  executive  will  no  more  eonspire  to  overthrow 
the  govommciti  than  the  Ilouse  of  Representatives.  It  supposes 
the  best  pledges  fur  ndclity  to  be  In  the  character  of  the  indi' 
riduals,  and  in  the  collective  wisdom  of  the  people  in  the  elioice 
of  agents.     It  docs  not  in  decency  presume  that  the  two-thirds 


S64 


C0MST1TDTI0N  OP  THE   UNITCI)  STATES.  [BOOK  III. 


of  the  Senate  repreeenting  the  States  will  corruptly  unite  with 
the  executive,  or  abtme  their  power.  Neither  does  it  guppone 
that  a  in&jortty  of  the  House  of  BepreBentativea  will  corruptl; 
refuse  to  iiupeavli,  or  corruptly  pass  a  law.' 

§  756.  But,  pasiing  by,  for  the  present,  (his  general  reasonini; 
on  the  objcctiong  stated,  tct  us  see  if  any  otltor  antl  better  practi- 
cal ioheme  for  the  trial  of  iinpeachiuentM  can  be  dcviitMl.  Oov 
Rcheme  iniglit  be  to  intriut  it  to  tlic  Supreme  Court  of  the  United 
States;  anolJier,  to  intrust  it  to  that  Court  niid  Uie  Hciiat 
jointly;  a  third,  to  intnist  it  to  a  special  ti'ibunal,  appointetf" 
permanently  or  temporarily  for  the  purpose.  If  it  shall  appear 
that  to  all  of  theRe  schemes  equally  strong  objections  may 
made  (and  probably  none  more  unexceptionable  could  be  su^ 
gested).  argument  in  favor  of  tlie  Senate  will  acquire  more  per- 
Huaaive  cogency. 

§  767.  Firat,  the  intrusting  of  the  trial  of  impeachments  to 
the  Supreme  Court.  This  was,  in  fact,  the  original  project  in  the 
convention.'  It  was  at  first  agreed  that  the  juriadictitHi  of  the 
national  judiciary  should  extend  to  impeaelmiouts  of  national 
officers.*  Afterwards  this  clause  was  struck  out,'  and  tliu  power 
to  impeach  was  given  to  the  House  of  Representatives;'  and  (he 
jusrisdiction  of  the  trial  of  impeachmnnts  was  also  given  to  the 
Supreme  Court"  Ultimately,  the  same  jurisdiction  wasasaigned 
to  the  Senate  by  the  vote  of  nine  States  against  twa^ 

§  758.  The  princijtal  reasons  which  prevailed  in  the  conven- 
tion in  favor  of  the  final  decision,  and  against  Testing  the  juris- 
diction in  the  Supreme  Court,  may  fairly  be  presumed  to  ha\'« 
been  those  which  are  stated  in  the  Federalist.  Its  language  is 
as  follows:  "Where  else,  than  in  the  Senate,  could  have  been 
found  a  tribimal  sufficiently  dignified  or  suflieiently  indejiendent? 
What  other  body  would  be  likely  to  foci  u>nlldeDce  enouirh  in  its 
own  situation  to  preserve,  unuwcd  and  uuintluenced,  the  necessary 
impartiality  between  a]i  individual  accused  and  the  reprcseota- 
tive«  of  the  people,  his  accusers?  Could  the  Supreme  Court 
have  been  relied  upon  aa  answering  this  description  7    It  i«  mnch 


>  Tba  Ftdaralut,  Ko.  W. 

■  Jogm)  of  ConrtatiM^  pp.  m,  HI,  l)ir,  ISO,  217,  S!!a,  83J.  SU.  39),  tit,  tU. 

•  Journal  e4  ConnotioD,  pfk.  89.  IS),  1ST.  •  Id.  1S9. 

•  Id.  SIT.  K*.  •«.««. 
t  Id.  S24,  SMv  SM. 


CB.  X.] 


tBB  SBfATB. 


to  be  doubtod  whether  the  membera  of  thnt  tribunal  would,  at 
al)  time*,  l>e  endowed  with  »o  emiuent  a  portion  of  fortitudo  u 
woiiM  be  called  for  in  the  exercise  of  iM  difficult  a  task.  And 
it  in  still  muro  tu  be  doubted  whether  they  would  p088C«ft  ft  de- 
grt^o  of  credit  and  Huthority  which  mifrfit,  on  certain  oocasions, 
bo  indinpcnsable  towards  reconciling  the  people  to  a  deeision 
which  should  hapi>cn  to  clash  witli  an  aci^usation  brought  by 
their  immediate  reprcscntutivc&  A  deficiency  in  the  first  would 
bo  fatal  to  the  occuHcd;  in  the  hist,  dangcroua  to  the  public 
tranquillity.  The  hazard  in  both  these  resix.'cta  could  only  l>e 
avoidisl  by  reuderiug  that  tribunal  luurc  nuineruuB  than  would 
consist  with  a  reasonable  attention  to  economy.  The  nccesaity 
ot  a  numerous  court  fur  the  trial  of  impeachments  is  equally  dic- 
tated by  the  nature  of  tJie  proceeding.  This  can  never  bo  tied 
down  to  such  strict  niles,  either  in  the  delinejition  of  the  offence 
by  the  prosecutors  or  in  the  eonstniction  of  it  by  the  judges,  aa 
In  common  cases  serve  to  limit  the  discretion  of  courts  in  faror 
of  personal  security.  There  will  be  no  jury  to  stand  between  the 
judges  who  are  to  pronounce  the  sentence  of  the  law  and  the 
party  who  is  to  receive  or  suffer  it  The  awful  discretion  which 
a  court  uf  im|>eachmonts  must  necessarily  have,  to  doom  to  honor 
or  to  Infamy  the  m««t  confidential  and  the  most  distinguished 
characters  of  the  commimity,  forbids  the  commitment  of  the  trust 
to  a  small  number  of  pi^rsons.  Tliese  considerations  seem  alooe 
to  authorize  a  cooclusion  that  the  Suprente  Court  would  have 
been  an  improper  substitute  for  the  Senate  as  a  court  of  impeach- 
ments. 

§759.  "There  remains  a  further  consideration,  which  will 
not  a  liltle  strengthen  (his  cnncliision.  It  is  this.  The  puni»l)- 
ment  which  may  W  Iho  consequence  of  conviction  upon  impeach- 
ment, is  not  to  terminate  the  chastisement  of  the  offender.  After 
having  Ini-n  Sfrnteneed  to  a  |)crpctual  iMtracism  from  the  oateem, 
and  confidence,  and  honors,  and  emoluments  of  his  country,  ho 
will  still  l>c  liable  to  proftecution  and  punishment  in  the  ordinary 
course  of  law.  Would  it  be  proper  that  the  persons  who  had  dis- 
poaed  of  his  fame  and  his  most  valuable  riglits  as  a  citizen  in  one 
trial  should,  in  another  trial,  for  the  same  offence,  be  also  the 
disposem  of  bis  life  and  fortune?  Would  there  nut  be  the  great- 
est reason  to  apprehend  that  error  in  the  first  sentence  would  be 
the  [Mtrvnt  uf  error  in  the  second  teatence  ?    Hiat  the  strong  bias 


AM^ 


£56 


CONSTITUTION   OP  tHE  UNITED  STATES.  [BOOK  HI. 


of  one  decisiuii  would  be  apt  to  overrule  tbe  inBuencc  of  Miy  new 
tiKhtB  wliioti  mi^ht  be  brought  to  vary  tiic  comploxtoa  of  aiiotlier 
decision  ?  Those  who  know  anything  of  buuiuii  nature  will  not 
hi-aitato  to  answer  these  questiona  iu  Uie  alTirrautivc,  and  will  be 
ut  no  loiM  to  perceive  that  by  making  the  same  peruwa  judges  ia 
botli  ca«i:«,  tl)08«  who  might  happen  to  be  the  objects  of  prosecu* 
tion  would,  in  a  great  measurti,  be  deprived  of  the  double  secu- 
rity iutvndcd  iJicin  by  a  double  trial  The  lOM  of  life  and  estate 
would  often  bo  virtually  included  in  a  sentence  which  in  ita 
teniis  inipurft-d  nothing  more  than  dismission  from  a  present, 
and  diiiiiuali  filiation  for  a  future  otlicc.  It  may  bo  said  that  the 
ioterveRtion  of  a  jury  in  the  accond  itutanoe  would  obviate  the 
danger.  But  juries  arc  frwjuenlly  iu)Iuciice<i  by  the  opinions  vl 
judges.  Ttivy  are  aomL'timcs  induct-d  to  find  special  verdicts, 
which  refer  the  main  question  to  the  decision  of  the  court  Who 
would  be  willing  to  stake  his  life  and  his  estate  upon  a  verdict  of 
a  jury  acting  under  the  auapicca  of  judges  who  had  pmdetermined 
his  guilt »"» 

§  760.  That  tliore  is  great  force  in  tliis  reasoning  all  person*! 
of  common  cuudur  must  allow;  that  it  is  in  every  resjH^t  satis- 
factory and  unanswerable  haa  been  denied,  and  may  be  fairly 
qurationed.  That  part  of  it  which  is  addressed  to  the  trial  at 
law  by  the  name  judges  might  have  been  in  some  degree  obviated 
by  confiding  the  jurisdiction  at  law  over  the  offence  (as  in  fact 
it  is  now  confided)  to  an  inferior  tribunal,  and  excluding  any 
judge  who  sal  at  the  impeachment  from  sitting  in  thv  court  of 
trial.  Still,  however,  it  i-amiut  be  denied  that  even  in  such  a 
case  the  prior  judgment  of  the  i?uprcmo  Court,  if  an  appeal  to  it 
were  not  allowable,  would  have  ver^-  great  weight  upon  the  minds 
of  inferior  judges.  But  tlint  part  of  the  reasoning  which  is  ad- 
dressed to  the  importance  of  numbers  in  giving  weight  to  the 
decision,  and  cspecinlly  thiit  which  is  addressed  to  the  public 
confidence  and  rc«|>e«t  which  ought  to  follow  upon  a  deeisiou,  is 
entitled  to  very  great  weight.  It  is  fit,  however,  to  give  the  an- 
swer to  the  whole  rcag^mins  by  the  other  side  in  the  worda  of  a. 
learued  coniinentutur,  who  has  embodied  it  with  no  small  ahare 
of  ability  and  skill.  The  reasoning  "seems,"  says  he,  "to  have 
forgotten  that  senators  may  be  discontinued  from  thi-ir  seataj 
merely  from  the  effect  of  popular  diaapprobatioo,  hut  tliat  the 

>  Th«  rolcnliit,  Ndb  (t&    But  m«  IUvIi  on  tLeCoiiMilutlaB,  A.  33,  "pp.  til,  SU, 


TUK  SENATE. 


AST 


judges  of  the  Supreme  Court  cannot.  It  seems  also  to  have  for- 
gotten that,  whenever  the  Preatdcnt  of  the  United  State*  is  im- 
peached,  the  Constihition  expresaly  requires  that  the  Chief  Jutitice 
of  the  Supreme  Court  ehall  preside  at  the  trial.  Are  all  tlie  con- 
fidence, all  the  firmness,  and  all  the  impartiality  of  that  court 
supposed  to  be  concentred  in  tbo  Chief  Justice,  and  to  reside  in 
his  breast  only  ?  If  that  court  could  not  Im  relied  on  for  Uio  trial 
of  im|)cachmenls,  much  less  would  it  seem  worthy  of  rcliauc« 
for  thv  dcUTini nation  of  any  question  between  the  United  Slates 
and  a  particular  State;  much  less  to  decide  upon  the  life  and 
death  of  a  jjenwn  who«»c  crimes  might  subject  him  to  impeach- 
mcnt,  but  whose  influence  niiglit  avert  a  conviction.  Yet  the 
courts  of  the  United  Htules  arc  by  the  Constitution  regarded  as 
the  proper  tribunals  where  a  party  convicted  upon  an  impeach- 
ment may  receive  that  condign  punishment  which  the  nature  of 
his  criraca  mar  require ;  for  it  mnst  not  be  foi^otten  tliat  a  per- 
son convicted  upon  an  impeachment  will  nevertheless  tfc  liable  to 
indictment,  trial,  judgment,  and  punishment  according  to  law, 
etc.  Tlie  queMion,  tlten,  might  be  retort^-d;  can  it  lie  supposed 
that  the  Kennt4>,  a  part  of  whom  nmi<t  have  been  cither  parlUrpa 
eriminit  with  the  person  impeached,  by  advising  the  measure  for 
which  he  is  to  bo  tried,  or  must  hove  jiVined  the  op]>oHition  to 
that  measure,  when  proposed  and  debated  in  the  Senate,  would 
be  a  more  independent  or  a  more  unprejudiced  tribunal  than  a 
court  coni[K>»Mi  of  judges  holding  their  oRicca  during  good  be- 
havior, and  who  could  neither  be  presumed  to  have  participated 
in  the  crime,  nor  to  hare  prejudged  the  criminal  ?  " ' 

§  7tn.  Thin  reasoning  also  has  much  foree  in  it;  but  in  can- 
dor also  it  mnst  be  admitted  to  bo  not  wholly  wicxceptionablc. 
That  [tart  which  is  addressed  to  the  circumstance  of  the  Chief 
Justice's  presiding  at  the  trial  of  the  President  oi  the  United 
States  waa  (as  we  shall  hereafter  sec)  not  founded  on  any  suppo- 
sition that  the  Chief  Juatice  would  bo  suiwHor  in  confidence  and 
firmnesa  and  impartiality  to  tlto  residua  of  tliu  judges  (though 

talents  and  public  res[Kct  and  acquirements  ho  might  fairly 
presumed  their  auporiur),  but  on  the  necessity  of  excluding 
the  Yiov-Presidcnt  from  tbo  chair  when  he  might  have  a  mani- 
fest interest  which  would  destroy  his  impartial ity.  That  part 
which  is  addressed  to  tbo  supposition  of  the  Knators  being  par* 

>  1  Tack.  Bluk.  CMtu.  Atip.  337. 


558 


CONBTITUTIOS  OP  THE  DMITED  STATES.  [BOOK  III. 


ticipei  criminiM  is  still  more  exceptionable;  for  it  is  not  only  in- 
correct to  aHirm  that  the  senators  ntiuf  be  in  such  a  prediciuneiit, 
but  in  all  probnbility  the  8«nators  would,  in  almost  all  rase^,  W 
without  anv  particii>atiQn  in  tJie  offence.  The  offences  wliicb 
would  bo  ^nerally  prosecuted  hy  impeachment  would  be  those 
only  of  a  high  character,  and  belnnjiing  to  persons  in  eminent 
stations,  — such  as  a  head  of  department,  a  foreign  minister,  a 
judKe,  a  rice-president,  or  a  president  Over  tlie  CKmduct  of  auufa 
persons  the  Seoatv  could  ordinarily  have  no  control ;  and  a  cor- 
rupt combination  with  them  in  the  discharge  of  tlie  duties  of 
tJicir  respective  offices  could  scarcely  be  presumed.  Any  of  these 
oflicers  might  be  bribed,  or  commit  groiis  misdeuieAnors,  wilhun 
a  single  senator  having  the  least  knowledge  or  participation  in' 
the  offence.  And,  indeed,  very  few  of  the  senators  could  at  any 
tjrae  be  presumed  to  bo  iu  habits  of  intimate  personal  confidenc 
or  connection  with  many  of  tJiese  officei's.  And,  so  (or  as  public' 
responsibility  is  concerned  or  public  confidence  is  required,  the 
tenure  of  office  of  the  judges  would  have  no  stnmg  tendency  tutj 
secure  the  former,  or  to  assuage  public  jealousies  so  as  peculiar! 
to  encourage  the  latter.  It  is,  perhaps,  one  of  the  circumstances] 
mo«t  im]>ortant  in  the  discharge  of  judicial  duties,  that  U 
rarely  ciirry  with  them  any  strong  popular  favor  or  popular  Jnfiu 
enca  The  influence,  if  any,  is  of  a  different  sori,  ariiting  from' 
dignity  of  life  and  conduct,  abstinence  from  political  contests, 
exclusive  devotion  to  the  advancement  of  the  law,  and  a  firm  ad- 
ministration of  jimiice ;  circumBtance.4  which  are  felt  more  by  tttt 
profession  than  they  can  be  expected  to  be  praised  hy  the  public 
§  762.  Besides,  it  ought  not  to  be  overlooked  tliat  such  . 
additional  accumulation  of  power  in  the  judicial  departnte 
would  not  only  furnish  pretexts  for  clamor  against  it,  but  might 
cruute  a  general  dread  of  its  influence,  which  could  hardly  fail  to 
disturb  llio  salutary  effects  of  Its  ordinary  functions.'  There  is 
nothing  of  which  a  frco  poople  are  so  apt  to  be  jealous  as  of  the 
existence  of  political  functions  and  political  checks  in  those  who 
are  notappoint«d  hyuud  made  directly  re^iponsible  tu  themselves. 
The  judicial  tenure  of  office  during  good  bcharior,  though  in 
some  respects  most  favorable  for  an  independent  discharge  of 
Dese  functions  and  cheeks,  is  at  tlie  same  time  obnoxious  to 
m.Q  strong  objections  as  a  remedy  for  impeachable  offeucos. 

1  Ths  Foltnliit,  No.  «i. 


CH.  X.] 


THE  SENATK. 


£69 


§  768.  Thopc  are,  however,  reagons  of  great  weight  bosidea 
those  which  hnre  been  already  alluded  to,  which  fullf  justify  the 
concluaion  tJiat  the  Suprnme  Court  is  not  the  most  appropriate 
tribunal  to  l«  invested  with  authority  to  try  iropcachments. 

§  764.  In  the  first  place,  the  nature  of  the  functions  to  be  per- 
formed. The  ofTenees  to  which  the  power  of  impeachment  has 
been  and  Ib  ordinarily  applied  a«  a  remedy  are  of  a  political 
character.  Not  but  that  Crimea  of  u  strictly  legal  character  fall 
within  (he  Bcopo  of  tlie  jMwer  (for  aa  wo  shall  presently  iet, 
treason,  bribery,  and  ulher  hi^h  cnmca  and  misdcmeunora  arc 
expressly  within  it);  but  that  it  has  a  more  cnlar^-d  upuraliun, 
and  reaches  what  arc  aptly  termed  political  offeuous,  f^rowiof; 
out  of  jtersonal  misconduct  or  gross  neglect,  or  usurpation,  or 
habitual  disregard  of  the  public  interests,  in  the  discharge  uf  the 
duties  of  (wlitical  ofike.  Tliesc  are  so  rariotis  in  their  character, 
and  so  indelinable  in  th^'ir  actual  iorolution.t,  that  it  is  almost 
impossiTitc  to  provide  Hystematically  for  them  by  poAitive  law. 
y  must  be  examined  ujwn  very  broad  and  comprehensive 
prinri|ilp«  of  public  poliry  and  duty.  Thoy  must  \>e  judurcd  of 
by  Uie  habitu  and  rules  and  principlcB  of  diplomacy,  of  depart- 
inentat  operations  and  arrangementa,  of  parliamentary  practioe, 
of  execuliTe  ciiat4>mR  and  negotiatiomt,  of  foreign  as  well  as 
domestic  politicnl  movcmcnta;  and,  in  short,  by  a  great  variety 
of  circumstances,  as  well  those  which  aggravate  as  thoae  which 
extenuate  or  justify  the  offensive  acta  which  do  not  properly 
belong  to  the  judicial  character  in  the  ordinary  administration 
of  justice,  and  are  far  removed  from  tlie  reach  of  municipal  juris- 
prudence. They  are  duties  which  an;  easily  undcnstood  by  states- 
men, and  are  rarely  known  to  judges.  A  tribunal  comiwecd  of 
the  former  would  therefore  be  far  more  competent  in  point  uf  in- 
teltif^nce  and  ability  than  the  latter  for  the  diaeharge  of  the 
functions,  all  other  circumstances  being  equaL  And,  surely,  in 
such  grave  afTairH,  the  competency  of  the  tribunal  to  discharge 
the  duties  in  the  best  manner  is  an  indispensable  qualificatiua. 

§  765,  In  the  next  place,  it  is  obvious  that  the  strictness  of 
the  forms  of  proceeding  in  cases  of  offences  at  common  law  is  ill 
adapted  to  impeachments.  The  very  habits  growing  out  of  judi- 
cial employments,  the  rigid  manner  in  which  the  di»cretton  of 
judges  is  limited  and  fenced  in  on  all  sides,  in  order  t'>  protect 
persons  accused  of  crimes  by  rules  and  precedents,  and  the  adhe- 


G66 


C0N8TITCTI0X   OP  tHE  OHITBD  STATES.  [bOOB  OI. 


renoe  to  technical  principleii,  wliich,  perlitpe,  distiQ^cnislirs  this 
branch  of  th«  law  niorc  tbun  any  other,  aro  all  ill  adapted  to  tite 
trial  of  political  ulfencea  in  the  liroad  coutrie  of  impcachiiieutA 
Anil  it  lioM  been  obaerrod,  with  great  propriely,  thai  a  tribunal 
of  a  liberal  and  comprehensive  character,  coulined  a«  little  as 
bte  to  aCrict  forms,  enabled  to  continue  its  siiision  as  long 
nature  of  the  law  may  require,  qualified  to  viuw  the  charge 
in  all  its  bearings  and  depcndenciea,  and  to  appropriate  ou  sound 
principles  of  public  policy  the  defence  of  the  accused,  nei-ms  ia< 
dispensable  to  the  value  of  the  trial.*  The  hiat»ry  uf  impuacb* 
monts,  boUi  in  England  and  America,  Justifies  the  romark. 
There  is  little  technical  in  the  mode  of  proceeding;  the  charges 
are  suHiciently  clear,  and  yet  in  a  general  form;  tiiero  arc  few 
exceptions  which  arise  in  the  application  of  the  evidence  which 
grow  out  nf  mere  technical  niles  and  quiliblen.  And  it  has  re- 
peatedly been  acen  that  the  functions  have  been  better  andei^ 
8to<^,  and  more  liberally  and  justly  expounded,  by  stateamen 
than  by  mere  lawyers.  An  illustrious  instance  of  thia  sort  is 
upon  record  in  the  case  of  the  trial  of  Warren  Haatin^,  where 
the  queMinn  whether  an  impeachment  was  abated  by  a  di&soln- 
tion  of  Parliament  was  decided  in  the  negative  by  the  Ilouae  d 
Lorda,  as  well  a.<i  the  HmLte  of  Commons,  agninat  what  seemed  to 
be  tile  weight  of  pi-ofeswional  opiuion.' 

§  766.  In  the  next  place,  the  rery  functions  involring  polili- 
cal  interests  and  connections  are  precisely  tliose  which  it  Be«ms 
most  important  to  exclude  from  the  cogniuince  and  participatJon 
of  the  judges  of  the  Supreme  Court.  Uuch  of  Uic  reverence  and 
respect  belonging  to  the  judicial  character  arise  fmra  the  belief 
that  the  tribunal  is  im{)artial,  as  well  as  enlightened;  ji»t,  as 
well  as  Eiearching.  It  is  of  very  great  conseqaence  that  judges 
should  not  only  be,  in  fact,  above  all  exception  in  this  resijoct, 
but  that  they  should  be  generally  believed  to  I>e  so.  They  should 
not  only  bo  pure,  but,  if  possible,  alwve  suspicion.  Many  of  the 
offences  which  will  be  charged  against  public  men  will  be  gen- 
erated by  the  hcala  and  animoaities  of  party,  and  the  very  cir- 
cumstance that  jndges  should  be  called  to  att,  as  umpircR,  in  the 
controveniiea  of  party,  would  inevitably  Involve  them  in  Uie 
common  odium  of  partiaaoa,  and  place  them  tn  public  opimoOr  if 

1  Riirk  oil  tbe  Coaititutkm,  cb.  33,  p.  SIS. 
■  4  BtMk.  CoDun.  too,  ChriUka't  Not*. 


CB.  J.} 


THE  8ESATB. 


661 


not  to  fact,  af  least  in  form,  in  the  nmiT'  on  une  side  or  tba 
other.  The  habita,  too^  arisiof;  from  auch  funclious,  will  lead 
them  to  take  a  mure  ardeut  part  in  public  diMuHiionx,  and  in  the 
rindicatiun  of  tlioir  own  political  deciiiiunK,  than  seems  dceirablo 
for  ttiMic  who  are  daily  called  upon  to  decide  upon  the  private 
rigbtt  and  ckima  of  men  diatiutcuishcd  for  thuir  political  conae- 
quouec,  leal,  or  activity  in  the  raukH  of  party.  In  a  free  (^vem- 
meut  like  oura  there  U  a  pvciiHor  propriety  in  withdrawing  aa 
much  aa  pwtsible  all  judicial  funetionarica  from  the  cootiwla  of 
mere  party  atrife.  With  all  their  efforts  iu  aroid  them,  from 
the  friM)  intercourse,  and  constant  changi-s  in  a  rcpubliciin  gor- 
emmcnt  both  of  men  and  measaros,  there  is  at  all  times  the  most 
imnitncnt  danf^r  tliat  all  classes  of  society  will  be  drawn  into 
the  vortex  of  politics.  Whatever  shall  have  a  tendency  to  secure 
in  tribunals  of  justice  a  spirit  of  moderation  and  exclusive  devo- 
tion to  juridical  dtitic«  is  of  inestimable  value.  What  can  more 
surely  ftdvanc«  this  object  than  tho  exemption  of  them  from  all 
participation  in,  and  control  o%'er,  t)»o  acts  of  iwlltical  men  ia 
their  oflieinl  duties?  Where,  indeed,  thum;  acts  fnll  within  the 
character  of  known  crimes  at  common  Isivr  or  by  positive  statute, 
there  is  little  difliculty  in  tho  duty,  because  tho  rule  is  known, 
and  equally  applies  to  all  persons,  in  and  out  of  oKiee;  and  the 
facts  are  to  be  tried  by  a  jun>',  according  to  tho  habitual  coorsa 
of  investigation  in  common  cases.  The  remark  of  Mr.  Woodo- 
son  on  tills  siibjt^ct  is  equally  just  and  appropriate.  After  hav- 
ing enumerated  some  of  the  cases  in  which  im]>e«chnienta  have 
been  tried  for  political  offences,  ho  odds  that  from  thette  "it  ig 
apparent  how  little  the  ordinary  trihiioals  are  calculatt^  to  take 
cognizance  of  such  olTenraa,  or  to  ini-esti^te  and  reform  the  gen- 
eral polity  of  the  sUte. "  ^ 

§  707.  In  tlie  next  place,  tho  iudge«  of  the  Supreme  Court  are 
appointed  by  tlie  executive,  and  will  naturally  feel  some  sympa- 
thy and  attachment  for  the  petson  to  whom  they  owe  this  honor, 
and  for  those  whom  be  selects  aa  bis  conlidential  advisers  in  tho 
departments.  Yet  the  President  himself  and  those  cunfidenttal 
advisers  are  the  very  persons  who  are  emmently  the  objects  to 
be  readied  by  the  power  of  impeachment  The  very  circmn* 
ttOItOO  that  some,  pcrham  a  majority,  of  the  Court,  owe  tiK-ir 
eleratJon  to  thu  same  chief  mafclstrato  \f\ione  acts,  or  tlioee  o( 


VOL.  I. — 3S 


I  S  WomUmo,  LmI.  M,f.901. 


562 


CONSTITUnOS  OP  THB  UKITKR  STATES.  [OOOK  Ul. 


his  conAdential  ndrisers,  are  on  trial,  woul<]  have  Bomc  tendt-acjr 
to  diminitih  the  public  confidence  in  the  imptu-tiallty  and  inde- 
pendence of  the  Irilnina!. 

§  768.  But,  in  the  next  place,  a  far  more  wcii^hty  considera- 
tion Es,  that  Bome  of  the  members  of  the  judicial  department  may 
Im!  imjMi^rhecl  for  malconduot  in  oDice;  and  thim  llmt  spirit 
which,  for  vant  of  a  hotter  term,  has  been  called  tlie  a>r]x>ra- 
tion  spirit  ot  organized  tribunald  and  societies,  will  nalurallj 
Jk-  brought  into  play.  Suppose  a  judge  of  tho  Supreme  Cotut 
yhould  hiniHclf  bo  impeached;  the  number  of  hist  trierB  wonld 
not  only  be  diminished,  but  all  the  attachmentii  and  partialities, 
or  it  may  Iw  tho  riTalrios  and  jealotmicfl,  of  peera  on  the  aan« 
bench,  may  be,  or  (vbat  is  practically  almost  ait  miRchicTouii) 
may  be  sHspected  to  be,  put  in  operation  to  screen  or  exaggemta 
the  ofTence,  Would  any  person  soberly  decide  that  the  jnd^ea 
of  the  Supremo  Court  would  be  the  safest  and  tlie  best  of  all  tri* 
bunats  for  the  trial  of  a  brother  judge,  talking  human  feelings  ag 
they  are  and  human  inlirmity  aa  it  is  ?  If  not,  would  there  not 
be,  even  in  rt-lation  to  inferior  jiidi^s,  a  sense  of  iodulgence.,  or 
a  bid*  of  opinion  njjon  certain  judicial  acts  and  practices,  which 
might  incline  their  minds  to  undue  extenuation  or  to  audii 
harshness?  And  if  there  should  be,  in  fact,  no  danger  fron 
such  a  Bonrce,  is  there  not  aumo  danger,  under  wic:h  eircuu 
stances,  that  a  jealousy  of  the  operations  of  judicial  tribunals 
over  judicial  offences  would  create  in  the  minds  of  the  commnit- 
ity  a  broad  distinction  in  regard  to  convictions  and  punisbmenla 
between  them  and  merely  political  offences?  Would  not  the 
power  of  impeachment  ocase  to  poseisss  itit  jnst  rc^'eren<M?  and  au- 
thority if  such  u  distinction  should  prevail;  and  cspcci;illy  if 
political  victims  rarely  escaped,  and  judicial  officers  as  rarely 
sufTcrcd  ?  Can  it  be  desirable  thus  to  create  any  tendency  in  tJia 
public  mind  towards  the  judicial  department  which  may  impair 
its  general  respect  and  daily  utility  ?  > 

§  7tiy.    Considerations  of  this  sort  cannot  bo  overlookeil  in  in- 
quiries of  this  nature ;  and  if  to  some  minds  they  may  not  Bfrm ' 
wholly   natiftfactory,    they  at  least  establish  that   the  Suprein*' 
Court  is  not  a  tribunal  for  the  trial  of  impeachment  wholly  sIiotc 
all  reasonable  exception.     But  if  to  considorations  of  tliiii  iwrti 
it  is  added  that  the  common  practice  of  free  govcrnmcnis,  nndl 

>  But  we  lUwln  oa  Ui«  OiMitlMtiM,  oh.  SS,  (>.  Hi. 


THE  8ESATE. 


56Z 


«Bpcci»lly  of  England  and  of  the  States  composing  the  Union, 
has  been  to  conltdo  this  power  to  one  department  of  Uie  Icgiata- 
tivc  body  upon  the  accunation  of  another;  and  that  thU  han  been 
found  to  work  well,  and  to  adjuat  itaelf  to  the  public  fvelingii 
and  prejudices,  to  the  dignity  of  the  legialatiire,  and  to  Uie  tniu- 
qnillily  of  the  State,  tlte  inference  in  its  favor  cannot  but  bo 
greatly  strengithoned  and  oonfirmcid. 

$  770.  To  thotie  who  felt  dif&uiUien  in  confiding  to  the  Su- 
premo Court  alone  the  trial  of  impoachments,  the  at'heme  might 
present  itself  of  uniting  that  court  with  tho  ^nate  jointly  for 
_  thia  purpose.  To  this  union  many  of  the  objoctiuns  already 
stated,  and  esjxwiully  those  founded  on  the  peeuliur  funelions  of 
the  judicial  ileiwrtmcnt,  would  apply  with  the  same  force  as  they 
do  to  Twting  the  •Supreme  Court  with  tJio  e.'teluitive  jurisdiction. 
In  some  otlicr  respects  there  would  result  advantogea  from  the 
union;  but  tliey  would  scarcely  overbalance  tlie  disadvantages.' 
If  the  judges,  compared  with  the  whoI«  body  of  the  Senate,  were 
few  in  number,  their  weight  would  scarcely  be  felt  in  that  body. 
Tba  habita  of  co-ofieration  in  common  daily  duties  would  creAto 
ainoag  the  senators  on  habitual  conl'idence  and  sympathy  with 
each  other,  and  the  same  habits  would  prodnoc  «  correspondent 
influence  among  tlio  jiKlgra.  There  would,  therefore,  be  two  dis- 
tinct bodies  acting  together  pro  re  nattt,  which  were  in  a  great 
measure  strangera  to  each  other,  and  with  feelings,  purauita,  and 
modes  of  reasoning  wholly  distinct  from  each  other.  Orcat  con* 
trariety  <rf  Oftinion  might  naturally  he  prcaumed  under  such  cir* 
cumstoncefl  to  spring  up,  and,  in  all  prolwbility,  would  become 
quite  marked  in  the  action  of  the  two  bodina.  Supitoae,  u{K)n  nn 
impcocliment,  the  senators  should  bo  on  ono  sido  and  the  jndgea 
on  the  other;  supp^wo  a  minority  composed  of  all  tho  judges  and 
a  considerable  number  of  the  senators;  or  suppose  a  majority 
made  liy  tho  co-operation  of  all  tlie  judgm ;  in  these,  und  many 
other  cases,  there  might  be  no  inconsiderable  ditlieuhy  in  outis- 
fying  the  public  mind  aa  to  the  result  of  the  impoaehnient  Ju- 
dicial opiuiou  miglit  go  urgently  one  way,  and  pulitienl  character 
and  opinion  as  urgently  another  way.  t^uch  a  stute  of  things 
would  have  little  tendency  to  add  weight  or  dignity  to  the  court 
in  the  opinion  of  the  community.  And  pi<r)iM)i!t  a,  lurking  sus- 
picion might  pervade  many  minds,  that  one  body  or  tJio  other 
»  Jim  r«dMalI*t,  Vo.  OS. 


564 


CONSTITUTION  OP  THG  ITNTniD  Stk-aB.  [BOOK  III. 


bad  pOBsessed  an  undue  preponderance  of  influence  in  the  actual 
dcciaioR.  Even  JDulouaics  and  discontcnta  might  grow  up  in  th« 
bosonui  of  tlio  cumporient  b'jdtca  tlivnutclvt-K,  frum  their  uvii 
difference  of  gtrut-'luru  and  hubiUt  and  oi:ciipatii>n«  and  duties. 
The  practice  of  go^-e^nmi■utit  has  not  hitherto  Mtablishcd  anjr 
threat  value  as  attachL-d  to  tJie  intermixture  of  different  bodies  for 
single  occasions  or  temporary  objects. 

§  771.  A  third  aebemo  might  be  to  intrust  tho  trial  of  impeach- 
mcula  to  a  Bpccial  tribunal,  conslitutud  for  tliat  «ole  purpose. 
But  whatever  arguments  may  bo  foimd  iu  favor  of  such  a  plan, 
there  will  be  found  to  be  corre«pondeut  objections  and  difficuiti' 
It  would  tend  to  increase  Uie  coniplesity  of  the  political  raachiue, 
and  add  a  new  spring  to  the  operationa  of  tbe  government,  the 
utility  of  wbicb  would  be  at  least  qncstionable,  and  might  clog 
its  just  movements.*  A  court  of  this  nature  would  be  attended 
with  heavy  expenses,  ajid  might,  in  practice,  ba  subject  to  many 
casualties  and  inconveniences.  It  nntst  consist  either  of  perma- 
nent officers,  stationary  at  the  seat  of  government,  and  of  coujm 
entitled  to  fixed  and  regular  stipends,  or  of  national  olfireni, 
called  to  the  duties  for  the  occaaion,  though  prcvioiiBly  designated 
by  office  or  rant ;  or  of  officers  of  tlie  State  govemmenta,  selected 
when  the  impeachment  was  actually  d^pending.^  Now,  eitlier 
of  tjiene  alternatives  would  he  found  full  of  embarrassment  and 
iotrieacy,  when  an  attempt  should  be  made  to  give  it  a  definite 
form  and  organization.  The  «>urt,  in  order  to  l>o  efficient  and 
inde|)endent,  ought  to  be  numeruua.  It  ought  to  possess  talents, 
experience,  dignity,  and  weif^t  of  character,  in  order  to  obtain, 
or  to  hold,  the  confidence  of  tlio  nation.  What  national  officera, 
not  belonging  to  either  of  the  great  departments  of  tbe  govem- 
mcntt  legislatire,  oxeeutivi^  or  judicial,  could  be  found  embra- 
cing all  these  requiaite  qualifications?  And  if  they  could  be, 
what  compeuaation  is  to  be  made  to  them  in  order  to  maintain 
their  character  and  importanoe,  and  to  secure  their  ser^-ici-s? 
If  the  court  is  to  be  selected  from  tbe  State  functionaries,  in 
what  manner  is  this  to  be  aocompliahcd  ?  How  can  their  ac- 
ceptance, or  performance  of  the  duties,  bo  cither  secured  or 
compelled  ?  Does  it  not  at  once  submit  the  whole  )>ower  of  im- 
iwachment  to  the  control  of  the  State  governments,  and  thus 
surrender  into  their  hands  all  tbe  means  of  making  it  efficient 
>  ne  FedM»litt,  Vc  ti.  *  Tb«  Faknlirt,  Ke.  K. 


CH.  X.] 


THE  eEKATB. 


MS 


and  Hatisfactorj- ?  In  political  contorts  it  cftiinot  be  Bupposcd 
that  either  the  Statoa  or  the  Stale  ftiiii'tionarieii  will  not  become 
partiHaQB,  and  deeply  iDteraated  in  the  siiccena  or  defeat  of  meiw- 
urea,  in  the  triumph  or  the  ruin  of  rivaU  or  oppoueiitit.  Parties 
will  naturally  desire  to  screen  a  friend  or  overwhelm  an  adver- 
sary, to  socun;  the  predominance  of  a  local  policy  or  a  State 
party;  and  if  stt,  what  f^umnty  ia  there  for  any  extraordinary 
fidelity,  independence,  or  impartiality,  in  a  tribunal  ho  comfKNK'd, 
beyond  all  others?  L>c«cending  from  such  ji^oeral  inquiries  to 
more  practical  considerations,  it  may  be  asked,  huw  ohall  auch 
a  tnlKmul  be  composed  i  Shall  it  be  contpoeMMl  of  State  osocu- 
tivcs,  or  State  legislators,  or  SUitc  judges,  or  of  a  mixture  of  all, 
or  a  selection  fmm  all  ?  If  the  body  is  very  large,  it  will  be- 
come unwieldy  and  feeble  from  its  own  wejglit.  If  it  be  s 
mixture  of  all,  it  will  ponsefta  too  many  elements  of  discord  and 
diventUiea  of  jud(!:raent,  and  local  and  profi-itiiionnl  opinion,  if 
it  bo  homogcneoua  in  its  character,  n»  if  it  consist  altogether  of 
one  claaa  of  men,  as  of  the  execntifce  of  all  the  States,  or  the 
jud^:es  of  the  aapremo  courts  of  all  the  States,  can  it  be  auppoaed 
(even  if  an  e^juality  in  all  other  rcape«ts  could  t>e  certainly  o)>> 
taincd)  that  persons,  selected  mainly  by  the  States  for  local  and 
peculiar  objects,  could  best  administer  tltc  highest  and  most  diffi- 
cult ftuictions  of  the  natjonal  government  ? 

§  772.  The  Federalist  has  spoken  with  unusual  freedom  and 
directness  on  this  subject  **  The  first  scheme  "  (that  is,  of  vest- 
ing the  power  in  some  permanent  national  oflicers)  *'will  be  rep- 
robated by  every  man  irbo  can  compare  the  extent  of  the  (wblic 
wants  with  the  means  of  supplying  them.  Tlie  second  "  (that  is, 
of  Testing  it  in  State  officers)  ''will  Ik>  eapouacd  with  caution  by 
those  who  will  Rcriously  consider  the  ditliculties  of  collecting 
men  dispersed  over  the  whole  Union ;  the  injnry  to  tlio  innocent 
from  the  pr<x'ra«tinatO(l  dutermi nation  of  the  chaises  which 
might  be  broiiirht  against  them ;  the  advantage  to  tlie  guilty  from 
the  of^rtunities  which  delay  would  afford  for  intrigue  and  cor- 
niption ,  and  in  some  cases  Uie  detriment  to  the  State  from  the 
prolongvrd  innetiim  of  men  whoso  firm  and  faithful  execution  of 
their  duty  might  have  exposed  them  to  the  persecution  of  an  in- 
tem|>pr,ite  or  denigning  majority  in  the  House  of  RRprnapntatives.. 
Though  tliia  latter  suppuaition  may  Heem  hareli,  and  might  not  be 
likely  crften  to  bo  vurilicd,  yet  it  ooght  not  to  be  forgottim  that  the 


666 


COSSTITUTION   OF  THE  UNITED  STATES.  [BOOK  HI. 


demon  of  (sctioa  will,  ut  certain  geoftons,  extend  his  »ceptre  over 
all  nuiQcrous  bodies  of  men."  And  th«  aiibject  is  concluded 
with  the  fullovriug  reflection:  "If  mankind  wera  to  resolvR  to 
agroc  in  no  inslttutioo  of  government  until  everr  part  of  it  had 
been  adjusted  to  the  rami  exact  ntandanl  of  perfoction,  society 
would  Bonn  become  a  general  scene  of  anarchy,  and  the  world  a 
dc*ert"l 

I  778.  A  scheme  somewhat  di^erent  from  either  (A  the  fore- 
going has  been  recommended  by  a  learned  commentator,^  drawn 
from  the  Virginia  constitution,  by  whivlt,  in  that  Stutc,  all  im- 
peachments are  to  be  tried  in  the  courts  of  law,  "according  to 
the  laws  of  the  land;"  and  by  the  State  laws  the  facta,  tat  io 
other  cases,  are  to  be  tried  by  a  jury.  But  the  objections  to  this 
course  would  be  very  serious,  not  only  from  the  coRfiideration.4 
already  urged,  but  from  the  difficulty  of  impanelling  a  sultalde 
jury  for  such  purposes.  From  what  State  or  SJtatcB  ia  such 
jury  to  he  drawn  ?  How  ia  it  to  bo  selected  or  composed  ?  Whi 
are  to  be  the  qualiRcations  of  the  jurors  t  Would  it  bo  safe  to 
intrust  the  political  interests  of  a  whole  people  to  a  commv 
paiK'l  ?  Would  any  jiu'y  in  times  of  party  excitement  he  fo«u 
sufficiently  firm  to  give  a  true  verdict,  unaffected  by  the  (mpular- 
ity  or  odium  of  the  measure,  when  the  natimi  waa  the  accuser] 
ThcKo  questions  are  more  easily  ])ut  than  they  can  be  satisfacto^^ 
rily  answered.  And,  indeed,  the  very  circumstances  that  the 
example  of  Virfrinia  bus  found  little  favor  in  other  States,  fur- 
nishes decisive  proof  that  it  is  not  deemed  lietter  than  others  tOj 
which  the  national  Constitution  bears  the  closest  analogy. 

§  774.  When  the  subject  was  before  the  State  conventions, 
sllliough  here  and  there  an  objection  was  started  against  the 
plan,  three  States  only  formally  proposed  any  amendment  Vir- 
ginia and  North  Carolina  recommended  "that  some  tribunal 
other  than  the  Scnnte  bo  provided  for  trying  impeachments  of 
$&nator»,"*  leading  the  provision  in  all  other  rcDfiecIs  an  It  stood. 
New  York  alone  recommended  an  amendment,  that  the  Sooute, 
the  judges  of  the  Supreme  Court,  and  (he  first  or  wnior  jndifi-  of 
the  hio^ost  State  court  of  general  or  ordinary  coiunmn-law  juris- 
diction in  each  State  should  constitute  a  couK  for  the  trial  of 
impeachments.*    This  recommendation  does  not  change  ttie  poa- 

«  TV  Vt4ml\»t,  U 0.  W.  »  1  Todtor'i  BUck.  Comiu,  App.  MT,  3SS. 

>  JoVTD.  or  CumBtloa,  8iin>-  *».  *4S.  *  Id.  is;. 


TBB  SENATE. 


607 


ture  of  a  single  objection.    It  received  no  8itp|)ort  vlecwhere,  and 
Uiu  0iibjec(  has  since  silently  slept  without  any  uffurt  to  rcvire  it 

§  775.  The  conclusidu  to  which,  upon  a  large  survey  of  th»* 
whole  Biihject,  our  jiidynii'nta  are  naturally  letl  in,  (hot  the  power 
luw  l>ecR  wisely  deposited  with  tlte  Senate.'  In  tlic  lanKU^eof  a 
learned  commentator,  it  may  he  said  that,  of  all  the  dupurtJnents 
of  the  (government,  "none  will  bo  found  more  suitable  to  exercise 
this  peculiar  juriadiction  than  the-  Hcnatc.  Although,  like  tlieir 
accusers,  they  arc  rcprwu-'iitativcs  of  the  people,  yet  tliey  arc  by 
a  degree  more  removed,  and  hold  their  stations  for  a  longer  term. 
They  are,  therefore,  more  independent  of  the  people,  and  being 
choflon  with  the  knowledge  that  they  may,  while  in  office,  be 
called  upon  to  exoreiAC  this  high  function,  they  bring  wit))  tliem 
the  confidence  of  their  constituents,  that  they  will  faithfully  exe- 
cute it,  ajid  the  implied  compact,  on  their  own  part,  that  it  shall 
be  honestly  discharged.  Precluded  from  ever  becoming  accusers 
themselves,  it  is  tlieir  duty  not  to  lend  themselves  to  the  ani- 
mosities of  party  or  the  prejudices  against  individuals,  which 
may  somctimefl  uiiconseioualy  induce  the  House  of  Representa- 
tives to  the  acts  of  ueeu^atiou.  Habituated  to  comprehensive 
views  of  the  great  political  relations  of  the  country,  tliey  are  nat> 
urally  the  Itest  <iualiiied  to  decide  on  those  charge!)  which  may 
have  any  connection  with  transuctions  abrund  or  great  jtolitical 
interests  at  home.  And  although  we  cannot  say  that,  like  the 
Kngliah  House  of  Lonla,  they  form  a  distinct  body,  wholly  unin- 
fluenced by  the  paasions  and  n-uiote  from  the  intereata  of  the 
people,  yet  we  can  discover  in  no  other  division  of  the  govern- 
ment a  greater  prol>Bbility  of  importialitr  and  independence."' 

§  770.  Tlic  remaining  parts  of  the  clause  of  the  Cuttstitullon 
now  under  consideration  will  not  require  on  elaborate  commen- 
tary, llie  first  is,  that  the  Scnat«,  when  sitting  as  a  court  of 
impeachment,  "shall  be  on  oath  or  aflirmation;"  a  provision 
wfaieb,  as  it  appeals  to  the  conscienra  and  integrity  of  the  mera- 
))en  by  tltv  same  sanctions  which  ajiply  to  judges  and  jurors  who 
sit  in  other  trials,  will  commend  itself  to  nil  persons  who  deem 
the  htglteat  trusts,  rights,  and  duties  wortliy  of  the  same  pro- 
tection and  security,  at  least,  as  those  of  the  humblest  order.  It 
would,  indeed,  Ix*  a  monstrous  anomaly,  that  the  highest  officers 
miglit  be  convicted  of  the  worst  crimes  without  any  sanction 

1  The  PeJoralul,  No.  «.  *  B«vk  oo  the  CMrt.  eh.  tt,  pp.  US,  Ut. 


668 


COXSTITUTIOK  OP  THE   ETKITED 


[book  03. 


being  iaterponed  againRt  th«  exercise  of  the  moBt  vindictive  paa- 
siona,  wbile  the  humblest  individual  has  a  right  to  demand  an 
oath  of  fidelity  from  tboHo  vho  are  bia  peen  and  bts  triers. 
England,  bon-ovcr,  upon  the  trinl  of  impeachments,  the  Uuuso 
Lords  arc  nut  under  oath,  but  only  make  a  declaration  upon  their 
hunor.^  This  is  a  strutijre  unomaly,  as  in  uU  civil  and  eriuinttl 
trials  by  a  jury  the  jurors  am  under  oath ;  and  there  8c4.-ms  no , 
reasou  why  a  uiuetiuu  equally  obligatory  up«>D  the  couscieaccs  < 
the  triers  should  not  exist  in  trials  for  capital  or  other  uffc 
before  every  other  tribunal.  What  is  Utcre  iu  tlio  honor  o(  a  peel 
which  neocssarily  raises  it  above  the  huuorof  a  commoner? 
ontHnaly  is  rendered  still  ntore  glaring  by  the  fact  that  a  peer 
cannot  give  testimony,  as  a  witness,  except  on  oncli;  for  here  his 
honor  is  not  trusted.  The  maxim  of  the  law  in  Auch  a  case  is, 
mjuJieio  rum  ertditur,  nitijuralu.*  Why  should  (he  obligation 
of  a  judge  be  less  solemn  than  the  obligation  of  a  witnesti  *  Tta 
truth  is,  that  it  is  a  privilege  of  power  conceded  in 
timea,  and  founded  on  feudal  sovereignty  more  than  on  justtcej 
or  principle. 

§  777.  The  a^st  provision  is:  "Wh«i  the  President  of  the 
Dnited  States  ia  tried,  the  Chief  Justice  shall  preside."  Tbs 
reason  of  this  clause  has  twen  already  adverted  to.  It  was  tai 
preclude  tim  Viee-Presideut,  who  might  be  supposed  to  have  irfl 
BBtura)  desire  to  succeed  to  the  office,  from  being  iustnunental 
in  procurinc  the  conviction  of  the  Chief  Magistrate."  Under 
such  circumstances,  who  could  be  deemed  mure  suitable  to  pre- 
side than  the  highest  judicial  magistrate  of  the  Union  ?  flis 
impartiality  and  indcjM-ndence  could  be  as  little  suspected  as 
those  of  any  per^i^n  in  the  country.  Aud  the  dignity  of  his  sta- 
tion miglit  well  be  deemed  an  adequate  pledge  for  the  p<wscssion 
of  the  highest  accomplishments. 

§  TiH.  It  is  added,  "And  no  person  shall  be  convicted  with* 
out  the  concurrence  of  two>tliirds  of  the  members  present."  Al- 
tJiougli  very  numerous  objections  were  taken  to  ths  Cuitrti itution, 
none  seems  to  have  presented  itself  against  this  particular  quo- 
rum required  for  a  conviction;  and  yet  it  might  have  been  fairly 
thought  to  bo  open  to  attack  on  various  sides,  from  its  supposed 

1 1  Bbck.  Caran.  MS ;  4  latL  tt ;  Z  ElliM't  IhibM**,  S*. 

•  1  Blnok.  Camm.  403. 

■  Baatt  on  CeoU-  elk  21.  p.  214. 


CB.  X.] 


THE  SENATE. 


669 


fe 


theoretical  inconroniencA  and  incongruity.  It  might  have  been 
uid,  with  some  plaiisihility,  that  it  desert^  the  general  princi- 
pleH  even  of  courts  of  jiutice,  whore  a  mere  majority  make  the 
deeininn,  and  of  all  legialativo  bodies,  where  a  similar  rule  is 
adopted,  and  that  the  requisition  of  two-thirds  would  reduce  the 
IMwcr  of  im]>cuchmcDt  to  a  mere  anility.  Besides,  u]>on  the  trial 
of  impcnchmcutit  in  the  House  of  Lords,  the  conviction  or  ac- 
quittAl  ia  by  a  mere  tnnjority ; '  (a)  so  that  there  is  a  failure  of 
any  analofiy  to  support  the  precedent. 

§  no.  It  does  not  i^pear  from  any  authentic  memorials  what 
were  the  precise  grounds  upon  which  this  limit«tio>i  was  inter- 
posed. But  it  may  well  be  conjectured  that  the  real  grounds 
were  to  secure  an  impartial  trial,  and  to  guard  public  men  from 
being  oacrificAd  to  the  immediate  impuldea  of  popular  resent- 
ment or  party  predominance.  In  England,  the  House  of  Lordi, 
from  its  very  atnicturo  and  hereditary  independence,  furniahcs  a 
suAicient  barrier  against  such  opprMsiun  and  injuaticc.  Mr. 
Justice  Blackstone  has  remarked,  with  manifest  satisfaction, 
that  the  nobility  "have  n^'ither  tho  same  intercsta  nor  the  same 
paasiona  oh  |>i>[>ular  assemblies ; "  and  that  "  it  is  pro|»er  that  tlie 
nobility  ahould  judge,  to  insure  justice  to  the  accused;  as  it  is 
proper  that  the  people  shoiitd  accuse,  to  insure  justice  to  th© 
commonwealth."'  Our  Senate  is,  from  the  very  theory  of  the 
Constitution,  founded  upon  a  more  popular  bsais;  and  it  was 
desirable  to  prevent  any  combination  of  a  mere  majority  of  the 
States  to  displace  or  to  destroy  a  meritoriouK  public  uQicer.  li 
a  mere  majority  were  aurTicleut  to  convict,  there  would  be  danger 
in  times  of  hifih  popular  commotion  or  party  spirit,  that  the  In- 
fluenoe  of  the  House  of  Representatives  would  be  found  irresist- 
ible. The  only  practicable  check  seemed  to  be  tlic  introduction 
of  the  clause  of  two-thirds,  which  would  thus  require  an  union 
of  opinion  and  interest,  rare,  except  in  cases  where  guilt  was 
manifest  and  innocence  Hcareely  presumable.  Nor  could  the 
limitation  be  justly  complained  of;  for,  in  common  coses,  tlie 
law  Dot  only  presumes  every  man  innocent  until  he  is  proved 

<  Can.  Dig.  PiriiMDHit,  U  IS,  17 ;  S  WoodcM^  Ltct  Vi,  g.  «11 
•  «  Bkck.  CoDuo.  Ml. 


(a)  A  jadmmml  of  imtaM^BMat  !■  lb« 
Rowe  ol  LonU  nqmira^  ho«r«T«r,  that  >t 
IhM  twdTB  of  Um  nMnbcn  ibould  eonev 


1b  It  i   "*  v«fdial  br  Irw  Uisa  t«dt» 
would  not  bo  good.'    Con^D'a  Digort,  U 


670 


CONCTITUTIOK   OP  TDK  UNITED  STATES.  [SOOK  IIL 


giiiltv,  but  unanimity  in  the  verdict  of  the  jury  is  indispeasable; 
Here  an  intermediate  scale  is  adopted  between  unanimity  and  a 
mere  Rmjoi-ity.  Ami  if  tbe  guilt  of  a  public  ofBcor  cunnot  ht 
establiahed  to  the  satisfaction  of  two-thirds  uf  a  body  uf  hi^ 
taicnts  and  acquirements,  which  sympathizes  vriUi  tho  people 
and  represents  the  States,  after  a  full  invest ipitiyn  of  th«  facts, 
it  must  be  that  tbe  eridenco  is  t«o  inGrm  and  too  louse  to  justify 
a  conviction.  Under  such  circumstAoceB,  it  would  be  far  mure 
coneunant  to  the  notions  of  justice  in  a  republic  that  a  i^uiltr 
person  should  escape,  titaa  that  an  innocent  jicrson  sliould  lM.-con>e 
the  victim  of  injustice  from  popular  odium  or  party  combinations. 
§  TSO.  At  the  di^taucA  of  forty  years,  wo  may  look  Itnck  uf>oD 
this  reasoning  with  entire  satisfaction,  llic  8enat«  has 
fotmd  a  snfe  and  elTcctive  depositary  of  the  trial  of  impcacl 
ments.  Uitring  tbat  period  but  four  cases  have  occurred  requir- 
ing Uiis  high  remedy.  In  tlirco  there  have  been  acquittaU,  and 
in  one  a  conviction.  Whatever  may  have  been  the  opiaions  of 
xealotLi  piartiHanit  at  the  times  of  their  occurrence,  the  sober  judg- 
ment of  tbe  nation  sanctioned  these  resntts,  at  least  on  the  side 
of  the  acrjuitt^il.^,  as  soon  as  they  became  matters  of  history,  re> 
moved  from  tbe  inimetliate  influencK^s  of  the  prosecutions-  The 
unanimity  of  the  awards  of  public  opinion,  in  \i»  final  action 
these  controversies,  has  been  as  great  and  as  (laliHfactory  as  canl 
be  attributed  to  any  which  involve  real  doubt  or  enlist  warm  pre- 
judices and  predilections  on  either  side.'(ii)     No  reproach  has 

■  Tlis  trinii  icn  otludcd  to  wert  of  Witluiu  Rloiiot  in  1799,  iif  f>anian]  Chw* 
1863.  of  John  I'itkBring  in  ISOl.  Mid  of  Jirum  H.  Frck  in  IftSl.    TIm  Uiiw  I 
arc  ulliul-J  Id  ill  lUmU  on  tha  Cao*t.  ch.  23,  p.  SIS.    So*  •In  t  Tuck.  Bhek.  Conni.' 
Siil,  ii'it-.-i  Id.  Ai>|i.  57,  »i>l  d<awl»  Joiuiialvof  tlion*p*cUTs  join.     lUwU  oaCoiitL. 
L'li.  $£.  [>.  lis  ;  SergHUit  ou  Corialitatimial  Law,  eh.  39,  fp.  343.  304. 

(a)  Ttiv  dniiiirr  Ibut  wawlon,  tiitmrm      men  recent,   iuvolring  tbe   Pr»«ld«n«T,j 


M  niirrMntHlivM  of  palttical  {itrUn^  vilt 
ht  «w>T«d,  nitMeioDiljr  or  unomxaoiudf, 
hr  coDtiikntioof  tlut  tbwM  art  iaBa* 
putw  (bviu,  ia  Diu«li  grutor  am  the  tn«1  of 
■  itoLitkal  officot  Item  who«  raaoval  oi 
Mention  f»ity  adraaLie*  nljitil  bo  m- 
poctod  Umu  Ml  thnt  of  k  JudfttL  .Tlib  ra 
(oTcilil;  lllniLtratod  Id  lh«  inifiMahniBnt  of 
PlMidcnl  JohoMii,  In  wliicL,  •K'uh  t,  low 
•Kfiptioni,  Muaton  ilindod  oa  ibe  ifota- 
tkin  of  gqllt  nriottr  xsording  to  thoir 
political  aOtiiUk*.    Anil  ■notiwf  IndaDo*, 


Ihongb    Mt  ui   iarpnirliitinnl,   oit^hl 
mtnlioned.      Tba    State    of    Srm   Yu 
Moka  lo  pnvDDt  «wJi  navlta  bjr  pi«*U 
ing  tiMt  tht  judgB  of  tlin  Court  of  Ap- ' 
pnda  xhnll  conrillntii  a  |art  of  tb*  cikuI 
at  Iwprachtiirnt.     In  H>m<  nva  nrh  an 
tlamrat  niiglit  bi  of  innalmUble  valur  ; 
bnt  ths  instanoc  lut  nfarad  to  (ottad 
fall  nnlidcnin  In  Ibt  abltiiy  of  Ju 
tttMnKlral— aian  JndRlM  ot  tba  b^a 
chataotir  —  tu  wl,    whmi    Uu   Blraiii 
l<any  b  Mvenr,  inllioUt  ngard  to  thalr 


CH.  X.] 


raB  SBKATC. 


5n 


orer  reached  the  Senate  for  ita  unfaithful  discharge  of  theae  higli 
functions;  and  the  voice  of  a  State  has  imrely,  if  ever,  displaced 
a  siQfflc  aonator  for  hie  vot«  on  such  an  occasion.  What  nioro 
could  bf  aski-d  iu  the  progress  of  any  ^ovcrniiK'nt  ?  ^\'ha(  more 
could  uxpcriencv  prwduuo  to  justify  confidence  in  tJie  institution  ? 

§  7«1.  Tlic  Hcxt  clauiw  is,  that  "Judgment  in  cases  of  iin- 
]>vachmcnl  shall  nut  extend  further  than  to  removal  from  oftioe 
and  diiuiuuliricntiou  to  hold  and  enjoy  any  office  of  honor,  trust, 
or  protit  under  the  United  States.  But  l)»e  party  convicted  shall 
iiovcrthcli-ss  he  liulilc  atvi  subject  to  indictwcut,  trial,  judgineDt, 
and  punishment,  according  to  law." 

§  782.  It  is  obvious  tliat,  upon  trials  on  impeachments,  one  of 
two  courses  must  bo  adopted  in  case  of  a  conviction:  cither  for 
the  court  to  priK-erd  to  pronoiuice  n  full  and  comjiletc  sentence  of 
pimishmcnt  for  the  offence,  according  to  the  law  of  tlio  laud  in 
like  cases  pending:  in  ttio  common  tribunals  of  jitstie*^',  superad- 
ding the  removal  from  offire  and  the  consctjucnt  dliuibilitivs;  or 
to  confine  its  sentence  to  tlic  removal  from  oHioe  anct  other  disa- 
biliticA.  If  (he  former  duty  Ijc  a  part  of  the  coustitutiouul  func- 
tions of  the  court,  then,  in  case  of  an  acquittal,  there  cannot  bo 
onoibcr  trial  of  the  party  for  the  same  offence  in  the  common 
tribunals  of  justice,  hocausc  it  is  repugnant  to  the  whole  theory 
of  the  common  law  that  a  man  should  bo  brought  into  jeopardy 
of  life  or  limb  more  llian  once  for  tho  same  offence,'  A  plea  of 
ac(]uittal  is,  therefore,  tfn  absolutu  bar  against  any  second  pron- 
ccution  for  the  same  ofTence.  H  the  court  of  impeachments  is 
merely  to  pronounce  a  senteneo  of  removal  from  olTice  and  tlic 
other  disabilities,  then  it  is  indispensable  that  provision  should 
be  made  that  Ihe  common  tribunals  of  jui^ticc  should  be  at  liberty 
to  entertain  jurisdiction  of  the  offence  for  tlie  ])uri)o«o  of  infUct- 
ing  the  common  punishment  npplicablo  to  nnofhcial  offenders. 
Otherwine,  it  might  l>o  matter  of  extreme  doubt  whether,  con* 
sistently  witli  the  great  maxim  above  mentioned,  established  for 
the  flocurity  of  the  life  and  limbs  and  liberty  of  the  citizen,  a 

cond  trial  for  tlie  same  offence  could  he  hod.  either  after  an 

fuittol  or  a  conviction,  in  Ihe  court  of  impeachments.     And 

I  t  Blwk.  Coaiu.  3S5,  3fl1  ;  HbwIl  P.  C,  B.  S;  cli.  Si. 


partjr  alBlbtloit*.  It  ironUl  bo  »  calBinltjr 
of  tha  hl)^c*t  Moment  it  Xha  (nenleiit 
•heaU  b*  wt  of  Um  coavUtloa  •ad  n- 


nonJ  ef  tht  Pmliltot  «a  •  putiain  reVf, 
■»1  Ml  fTODDdt  Ddl  wnetloanl  liy  Um  lobar 
MOM  ud  MkUin  nlUcdoB  of  Uia  ptofls. 


572 


CONSTITUTION  OP  THE  tntlTIH)  STATES.  [BOOK  ITI. 


if  no  such  aocond  trial  could  be  had,  then  the  fiTm9n»i  officii 
ofTendors  mi^ht  eacapo  without  anj  subatantial  punitihment,  evoil 
for  crimvs  which  would  subject  their  fellow-cititetui  to  cttpitat] 
punishment. 

§  783.  Th«  Constitution,  then,  having  provided  that  jDd| 
upon  impouchmcnts  bhnll  not  cxtonil  further  than  to  removal 
from  office  and  diaiiualirication  to  hold  oflice  (which,  however 
affiictire  to  UD  ambitious  and  elovatud  mind,  would  be  Marcelf 
felt  *B  a  puniftltuicnt  by  the  proftif^Us  and  the  bose),  has  wisely 
subJMtvd  tlic  party  to  trial  in  the  common  crlmtnal  tribunals, 
for  the  ptu-jxwe  of  rcc«iving  such  puniiihmcnt  a«  ordinarily  lie- 
longs  to  the  oETcnce.  Thus,  for  instance,  trvaaon,  which  bjr  oar 
laws  is  a  capital  offence,  mar  receive  its  appropriate  punish- 
meiit;  and  bribery  in  high  oflicers,  which  otherwise  wmtld  be  a 
mere  disqualificntion  from  office-,  may  have  the  loeaiturc  of  its 
infamy  dealt  out  to  it  with  the  same  unsparing  severity  which 
attends  upon  other  and  humbler  offenders. 

%  784.  In  England,  the  judgment  upon  impeachmcuts  is  not 
oonfinrd  to  mere  removal  from  office,  but  extends  to  the  whulo 
punishment  attached  by  law  to  the  offence.  The  House  of  Lords, 
therefore,  upon  a  conviction,  may  by  its  sentence  inflict  capital 
puniidiment,  or  perpetual  baniRlinifnt,  or  forfeiture  of  goods  and 
land^,  or  line  and  ranflom,  or  impriaoument,  as  well  as  remo^'al 
from  office  and  incapacity  to  hold  office,  according  to  the  nature 
and  aggravation  of  the  offence.* 

§  185.  As  the  offencea  to  which  the  remedy  of  impeachment 
has  been,  and  will  continue  to  be,  principally  applied  arc  of  a 
|)otittcal  nature,*  it  is  natural  to  suppnuto  that  they  will  be  often 
exaggerated  by  party  spirit,  and  the  prosecutious  be  sometimos 
dictated  by  party  renentnienta,  as  well  as  by  a  sense  of  the  public 
ptod.  Tlicre  is  danger,  therefore,  that  in  cases  of  conviction 
Ihe  puniHhmont  may  be  wholly  out  of  proportion  to  tJie  offence, 
and  prctiscd  as  much  by  popular  odium  as  by  aggravated  crime. 
From  the  nature  of  such  offences,  it  is  impossible  to  fix  any 
exact  grade  or  measure,  cither  in  the  offenrfs  or  the  punish- 
ments; and  a  very  larpe  discretion  must  unavoidably  be  vested 
in  the  court  of  impeachments  as  to  both.  Any  attempt  to  define 
the  offences,  or  to  ufEs  to  uvery  grade  of  distinction  its  appropri- 

>  Com.  Dig.  FutbwMnt,  I.  14 ;  8  WotWbMO,  LwL  40,  i^l  tU  to  eii. 

•  s  WoodMm,  Ltct »,  pp.  eoi.  eot. 


CM.  X.J 


THE  SEXATB. 


sn 


ate  meftsnra  of  pnnishment,  wwild  probablj  tend  to  more  injustice 
ajid  InooDTenience  thnn  it  wmitd  correct,  Mid  perhaps  would  ren- 
der tlie  power  at  onoe  inefficient  and  unwieldj.  The  discretion, 
then,  if  confided  at  all,  being  peculiarly  siibjeet  to  abuse,  and 
ooanectiDg  itsolf  vith  State  parties  and  State  contentions  and 
State  animositieit,  it  was  deenuid  most  advisable  by  tJio  conven- 
tion that  the  power  of  the  S^^nattt  to  inflict  pnnii«bnient  should 
merely  reach  the  rit^bt  and  qualifications  to  ofiice,  and  thus  take 
away  the  temptation  in  factious  timra  to  sacrifiDe  good  and  great 
men  upon  the  altar  of  party.  History  had  sufficiently  adnion- 
istK-d  thtfm  that  the  power  of  im[M.>uchnicnt  had  be<?n  thus  niis- 
ohio'ously  and  inordinately  applied  in  other  ages;  and  it  was 
not  safe  to  disrc^rd  those  lessons  which  it  bad  left  for  our  in- 
struction, written  not  unfrequently  in  blood.  Lord  Strafford,  in 
the  reign  of  Charlc«  the  First,  and  Lord  Stafford,  in  the  reign 
of  CharlcH  the  Second,  were  bi>)h  convicted  and  punished  capi- 
tally by  the  ilunsc  of  Lords;  and  both  hare  been  suppo«ed  to  have 
been  rather  Yictims  to  the  spirit  of  the  times  tlian  offenders 
meriting  such  high  piinishments.'  And  other  easi^  have  oc- 
curred, in  which,  whatever  may  have  )>een  the  demerits  of  the 
accused,  his  fitutl  overthrow  hats  been  the  result  of  political  re- 
sentments and  hatreds,  far  more  than  of  any  desire  to  promote 
public  justice.* 

§  786.  There  is  wisdom  and  sonnd  policy  and  intrinsic  justie« 
in  this  setmralion  of  the  offence,  at  least  ao  far  as  tlie  jurisdic* 
lion  and  trial  are  concerned,  into  its  proper  elementa,  bringing 
the  political  part  under  the  power  of  tbe  political  department  of 
the  government,  and  retaining  the  civil  part  for  presentment  and 
trial  in  tbe  ordinan,-  fomra.  A  jury  might  well  bo  intrusted  with 
the  latter,  while  the  former  should  meet  its  appropriate  trial  and 
punishment  before  the  Senate.  If  it  should  l>o  asked  why  sepa- 
mfe  triala  flhoiild  thus  bo  suoocasively  had,  and  why,  if  a  convic- 
tion should  take  place  in  a  eonrt  of  law,  that  ooart  might  not  be 
intrusted  with  the  power  to  pronounce  a  removal  from  office  and 
flie  difuiualification  to  office  as  a  |inrt  of  its  aeotenoo,  the  answer 
has  lieen  already  given  in  th(^  reasoning  against  vesting  any  court 
of  law  with  merely  political  functions.  In  the  ordinary  counte  of 
the  admiuistratjon  of  criminal  justice,  no  court  is  authoriEcd  to 

>  B««fa on  Ik*  CoMtitMiim.  di.  SI,  ]i.SlT;  1  WemlMoti,  Lwt  *0.  pf.  «IM,  MP. 
•  Com.  Dig-  ParUuiwil.  L.  28  to  W  ;  9  WoodMon,  l.n;t.  iO,  pfit  •)»,  S30. 


674 


OONSTITtmOK  OP  TOR  UMrTED  RTATES.  [BOOB  111. 


remove  or  dj^iunlify  nn  offender  as  a  part  of  its  regular  jixlg- 
in«nt.  If  it  requite  at  all,  it  renultfi  as  a  consequence,  and  not 
as  a  part  of  the  sentence.  But  it  may  I>e  properly  u^^od,  that 
the  venting  of  aucii  a  high  and  delicate  power  to  be  exercised  by 
a  court  of  lav  at  its  discretion,  would,  in  relation  to  the  distin- 
guished fimctionaries  of  the  povcrnnK-'nt,  bt-  p«?culiarly  unfit  and 
inexpedient.  What  could  be  more  cmbarriuising  than  for  a  court 
of  law  to  pronounce  for  a  removal  upon  the  mere  irruund  of 
political  usurpiition  or  malversation  in  ollicc,  admittinif  of  end- 
k'Sfl  varieties,  from  the  Bli^ktest  ^ilt  up  to  ihc  most  l^aKrant 
corruption  ?  Ought  a  Pr<?8ident  to  bo  removed  from  oBice  at  tbo 
mere  will  of  a  court  for  political  misdemeanors  ?  Is  not  a  politi- 
cal body,  like  the  Senate,  from  its  superior  information  iu  regard 
to  executive  functions,  fur  better  quulirmd  to  judf^  how  far  the 
public  weal  mif^t  bo  promoted  by  bucIi  a  punisluncnt,  in  a  given 
case,  than  n  mere  juridical  tribunal  ?  SuppusiL-  the  Senate  should 
still  deem  the  judgment  irregular  or  luijustifiublo,  liow  is  thft:; 
removal  to  take  effect,  and  hovr  is  it  to  be  enforced  ?  A  aepara^ 
tioR  of  the  removin);  |>owcr  altovrether  fi-ora  the  ajipoinling  |M>wcr 
might  create  mam-  practical  diilicullie^,  which  ought  iiol,  uxecpt 
upon  the  most  urgent  reojtons,  to  bo  introduced  into  mutters  ol 
govemmcttt.  Without  attempting  to  maintain  tlmt  the  diflicul- 
tics  would  be  in8U|)erable,  it  is  sufbcioiit  to  sliow  thiit  Ihey  might 
be  highly  inconvenient  in  practice. 

§  787.  It  doi>8  not  appear  from  the  Journal  of  tlic  Convention 
that  the  provision  tliiis  limiting  the  sentence  upon  impeaehmcnts 
to  removal  and  disqualification  from  oflioo  attntcled  much  atten- 
tion until  a  late  period  of  its  deliberatiotw.*  Ilie  adoption  of  it 
was  not,  however,  without  some  difference  of  opinion,  for  It 
passed  only  by  the  voto  of  seven  States  against  three.'  The 
reasons  on  which  this  opposition  was  founded  do  not  appear; 
and  in  the  State  conventions  no  doubt  of  the  propriety  of  the 
provision  seems  to  have  be^-n  seriously  entertained. 

§  788.  In  order  to  complete  our  review  of  the  constitutional 
provisions  on  tJio  subject  of  impeachments,  it  is  neoessary  to  aa- 
certain  who  are  the  iwrsons  liable  to  bo  impeached,  and  what 
arc  impeachable  offeoocs.     By  some  strange  inadvertence,  this 

■  Jouni*!  ot  Ihe  Connntioii,  -pp-  337i  90S,  8U. 

*  Jonmal  of  ih*  CoavtatMiii,  |i|>.  !S7,  S02.  Sn  8  EUiaf*  OebtM^  13  M  «« ;  Id.  U 
to  S7  ;  Id.  1«7,  lOS. 


I 


CB.  X.] 


675 


part  of  tbe  Oonfltitutton  has  been  taken  from  its  natural  connec- 
tion, and  wtdi  no  ^rcat  propriety  arraiigcd  under  that  head  which 
emhru»;8  the  or^nlzatioa  and  rights  and  duties  of  the  executive 
department.  To  prevent  the  necessity  of  ac;aiu  reeurrinir  to  this 
subject,  tJio  fronerul  mvthod  proscril>cd  in  these  commentaries 
will  in  this  instanco  bo  departed  from,  and  th«  only  remaining 
pTOTision  on  impeachments  be  here  introduced. 

§  789.  I1i«  fourth  tw-ction  ol  the  second  article  is  as  foMoirg: 
"11)6  I*r«sidcnt,  Vice-President,  and  all  civil  officers  of  the 
United  State*,  shall  be  removed  from  ofHce  on  itnfioaehment 
for,  and  conviction  of,  treason,  bribery,  or  other  hi;;h  crimes 
and   miftdemeanora."' 

§  790.  From  this  clauiie  it  appear*  that  the  remedy  by  im- 
peachment is  strictly  confined  to  civil  ofliocra  of  tlic  Unitvd 
Stateii,  including  the  President  and  Vice-President.  In  this 
respect  it  differs  materially  from  the  law- and  practice  of  (Ireat 
Britain.    In  that  kindirom,  all  the  kinjf'a  subjects,  whetlter  (lecn 

'  oommonerB,  are  impeuchablo  in  Parliament :  thou(;h  it  is  as- 
cd  thai  commoners  cannot  now  be  impeached  for  capital  of- 
but  fur  misdemeanors  only.'  Such  kind  of  misdecda, 
itowerer,  as  peculiarly  injure  the  commonwealth  by  the  ab«iite  of 
high  ofHoes  of  trust  arc  the  must  proper,  and  have  hoei)  the  most 
nsoal  groonds  for  this  kind  of  prosecution  in  Parliament^  There 
fleems  a  peculiar  propriety,  in  a  republican  irovernment  at  least, 
in  oonfininf!  the  impvachiuj^  power  to  persons  huldinj;  office.  In 
aocb  A  government  all  the  citizens  arc  C([unl.  and  ou):ht  to  have 
th«  same  security  of  a  trial  by  a  jury  for  all  crimes  and  offences 
laid  to  their  charge,  vhcn  not  holding  any  olficial  character. 
To  subject  them  to  impeachment  would  not  only  Ive  extremely 
oppressive  and  ex))eiisive,  but  would  endanger  tlieir  lives  and 
liberties  by  exposing  them  against  their  wills  to  pcraecntion  (or 
their  conduct  in  exercisinir  their  political  rights  and  pririlegca. 
Dear  aa  the  trial  by  jury  justly  is  in  civil  cases,  its  value  as  s 
protection  against  tbe  reacntment  and  riotenec  of  rulers  and 
factions   in  criminal  prosecutions  makes  it  ineatimsblc.     It  js 

*  In  the  rMiv«ntl««>,  lh«(UnMiBttklD9  th*  PntUnit  IkUs  taimoval  rroaolltoran 
bniwMihaMDt  ami  ocniTiciion  wu  not  luwoimoualjr  agntd  la  |  bat  paiaed  bj  «  vot«  of 
ei^t  Statts  igdMl  two.    Jovnal  of  Cmit*Dlic«,  |ip.  01,  194,  S11. 

^  *  4  Black.  Oamm.  SM,  and  Chrirtiui'i  Kote ;  2  WoodanD,  L<Ki.  tO,  p.  001,  Ac ; 

^m   Con.  IM*.  pNiUamiMt,  U  SS  l»  40. 

^1        '  ]  WmxUmd,  Ucl  to,  pp.  Wtl,  802. 


670 


C0N8T1TIJTI0S  OP  HIE  OKITED  BTATFa.  [BOOE  111. 


there,  and  there  onlj,  that  m  cUisen,  in  the  srinpatliy,  the  im- 
pftrtislity,  the  intelligence,  and  incorruptible  intcgritjr  of  hia 
fellows,  impanelled  to  tr>-  the  accusation,  may  imlui-^o  a  well- 
foiindcd  poiindenoe  to  sustain  aiid  eheer  him.  !£  ho  should  cliuuM 
to  accept  offiee,  he  would  voluntarily  incur  all  tho  additional 
r08pon»ibility  growing  out  of  it  If  impeached  for  hia  condnct 
while  in  oRice,  he  could  not  justly  complain,  since  ho  was  phiCfd 
in  that  predicantent  by  his  own  clioice;  and  in  accepting  oOtcc 
he  Bubmitted  to  all  the  consequences.  Indeed,  the  moment  il 
was  decided  that  tho  jiidj^ent  upon  impeachments  should  be 
limited  to  removal  and  disqualification  from  oflice,  it  followed, 
as  a  natural  result,  that  it  ought  not  to  reach  any  but  ofTiccra  of 
the  United  States.  It  fleems  to  haTo  been  the  orifrinal  object  of 
tho  friends  of  the  national  government  to  conrme  it  to  these 
limits ;  fur  in  the  original  molutions  pru|>o«cd  to  the  conrcn- 
tion,  and  in  all  the  8iibtMM|uent  proceedings,  tho  pover  won  ex* 
prcHsly  limited  to  national  officers,' 

§791.  Who  are  "civil  officers,"  within  the  meaning  of  this 
const  i  tut  ion  nl  provision,  is  an  inquiry  which  naturally  presents 
itself;  and  the  answer  cannot,  perhaps,  be  deemed  settled  by 
toy  solemn  adjudication.  The  term  "civil "  has  various  signifi- 
cations. It  is  itometimes  used  in  eontrudixtiitetion  to  harharw\ 
or  tava^jt,  to  indicate  a  state  of  society  reduced  to  order  and  rcg> 
ular  government  'ilius,  we  speak  of  oivil  life,  civil  society, 
civil  government,  and  civil  liberty,  in  which  it  is  nearly  eqatr- 
alent  in  meaning  to /Mftt/ca/.^  It  is  sometiines  uncd  in  contra- 
distinction to  criminal,  to  indicate  the  private  rights  and  retoedicB 
of  men  as  merolierR  of  the  commuoity,  in  contrast  to  those  which 
are  public,  and  relate  to  the  government  Thua,  wo  speaik  of 
civil  process  and  criminal  (Mxwesa,  civil  juriadictiiHi  and  crimi- 
nal jurisdiction.  It  is  sometimes  used  in  contradistinction  to 
military  or  eceleritutieal,  to  natural  or  foreiffn.  Tlins  we  speak 
of  a  civil  station  as  opposed  to  a  military  or  ecclesinstical  ata-' 
ti(Mi;  a  civil  death  as  opposed  to  a  natural  death;  a  ciril  war  as 
opposed  to  a  foreign  war.  Tlie  sense  in  which  the  term  is  used 
in  the  Constitution  seems  to  be  in  contradistinction  to  militari/. 


1  Joonul  of  Cnnvtstioa,  0, 131,  137,  atS. 

*  JotuiMii-a  Dieliaauy,  Omi:  1  Black.  Conwk,  «,  Ittf.  SSI ;  MontMf.  SpWl  el 
La<ti^  B.  1,  <A.  S 1  Ruthxffotili'i  tntt.  B.  S.  ch.  3,  p.  3S ;  Id.  ek  S,  p.  31 ;  ]<L  oh.  S. 
p.  SW  i  Heiikfe.  Ktrai.  Jurti  N*t.  B.  2,  di.  4. 


m  SiNA-nL 


577 


» 


I 


to  indientc  the  rig:hts  aiid  <lulip»  relating  to  citixeng  generally,  in 
cuntrudiBtinction  to  tboae  of  pomons  engaged  in  the  land  or 
tiural  mrvicc  o{  the  government  It  is  in  thiH  aenm  that  Black- 
stonv  Hpeaks  of  tho  luity  in  England  an  dividod  into  three  diatinct 
xtatM;  the  civil,  tho  mililary,  and  the  maritiraoj  the  two  latter 
«mhracing  tho  land  and  naval  forces  of  the  govoramcnt'  And 
in  the  sajHC  sonae  tho  (.-xjieDsofl  of  tlie  civil  list  of  oRiccra  are 
8|>okcn  of  in  cuntradistinc^tion  to  those  of  tho  army  and  navy.' 

§  792.  All  oiTicvrs  of  tho  United  States,  ihoroforc,  who  hold 
their  a|»)><iintnicnt:t  nndcr  tho  national  government,  whether  their 
duties  arc  ex«ciilivc  or  jiKlicial,  in  the  highest  or  in  the  lowest 
departments  of  the  government,  with  the  exception  of  officers  in 
the  army  and  navy,  are  |iro|}crIy  eivil  ollieors  wtlhin  the  meaning 
of  tlie  Constitution,  and  liable  to  iniiK-iiohment*  The  reason 
for  excepting  military  uid  naval  oflicent  is,  that  they  are  stibjcct 
to  trial  and  puniRhment  according  to  a  peculiar  military  code, 
the  laws,  rules,  and  usagni  of  war.  Tho  very  nature  and  effi- 
ciency of  military  dutien  and  diaeipline  require  thin  dummary 
and  excluaire  juriiuliction;  and  tho  promptitude  of  ita  opera- 
tions is  not  only  liettcr  suited  to  the  notions  of  military  men, 
hut  they  deem  tlieir  honor  and  their  reputation  more  safe  in  tlie 
hands  of  their  brother  officers  than  in  any  merely  civil  tribunal. 
Indeed,  in  military  and  naval-  affairs,  it  is  «]uite  clear  that  the 
Senate  could  scarocly  posaesa  competent  knowledge  or  experience 
to  decide  upon  the  acts  of  military  men ;  so  nmch  are  tliesc  acta 
to  be  goromod  by  mere  usage  and  custom,  by  military  discipline 
and  military  discretion,  that  the  Cunslitiition  has  wisely  com- 
mitted the  whole  trust  to  the  decision  of  courls-martial. 

§  793.  A  question  arose  upon  aji  {m]>eachm«nt  before  the  Sen- 
ate in  1799,  whether  a  st^'nutur  was  a  civil  ollicer  of  the  Unitvd 
States,  within  the  purview  of  the  Constitution;  and  it  was  de- 
cided by  the  Senate  that  he  was  not;*  and  the  like  principle 
must  Apply  to  tlie  inembera  of  the  tlouite  of  Iteprcitentativ-es. 
This  decision,  u|Mn  which  tlie  f>enate  itself  waa  greatly  divided, 


<  1  Biuk.  Comm.  >»«,  IDS,  417 ;  IW  tiitim.  B.  %  ch.  17.  p.  1(8. 

*  t  HUok.  Oomm.  83X 
■  IU*le  on  the  OonMitalioa,  eh.  S3;  p^  913. 

•  Th«<l(<ukinwuiiudobjBTaUari«*euiiat  II.  See  Senate  Jonraal,  IMi  Jmo- 
>fy,  17M :  I  Tneker'*  Bbdc  Comn.  App.  K.  U ;  [U»l«  «■  C«iu>t  eh.  SI,  pp.  11 S, 
Sl(. 

TOL.  1.  —  87 


ibAi 


078 


CONSTlTCnOS  OP  THE  USITED  STATE8.  [bOOK  in. 


■eenu  not  to  have  been  qiiil«  satisfaotoiy  (u  it  m&y  bn  ^thered) 
to  the  minds  of  Home  lennied  commentators.'  The  reasoning  by 
which  it  was  titistaincd  in  the  >!enate  doett  not  appear,  their  tle- 
liberatinns  baring  been  private.  But  it  waa  probably  held  that 
"civil  officers  of  the  United  States"  meant  such  aa  derived  their 
ftppoiiittncnt  from  aud  under  tlic  national  government,  aiid  not 
(koKC  pcnwna  who,  though  uiomber«  of  the  government,  derivedj 
their  appointment  from  the  States,  or  the  people  of  the  HtatM 
In  this  view,  the  enumeration  of  the  Hrcnident  and  Vice-Preni- 
dent,  as  impeachable  oflicera,  was  indispensable;  for  they  derive, 
or  may  deri^'C,  tlieir  oiHcc  from  a  soiiroe  paramount  to  the  na- 
tional gOTcmmeot.  And  the  clause  of  the  Constitution  now 
under  considemtinn  does  not  even  affect  to  conaider  them  offiwra 
of  the  United  States.  It  says,  '*the  l^-esidont,  V ice-Pr^'sident, 
and  ail  itivU  officers  (not  all  ot^irr  civil  tdhcers)  ahall  be  removed," 
Ac  The  lanjriiage  of  the  claume,  therefore,  would  rather  lead 
the  conclusion  tJiat  they  wer-e  enumerated,  aa  contradiHiingiiialie 
from,  rather  than  aa  included  in  the  deacriptian  of  civil  officers 
of  the  United  .States.  Other  rlauHes  uf  the  Cunstitulion  would 
seem  to  favor  the  Hsme  result,  particularly  th«  eluise  respecting 
appointmcDt  oi  officers  of  the  CFntted  States  by  the  executire, 
who  is  to  "commiiMiun  all  Iho  ofttcers  of  the  United  States;"* 
and  the  sixth  section  of  the  first  artielu  which  declares  that  "no 
person  holdinif  any  office  vtnder  the  United  States  shall  be  a  mem- 
ber of  cittHT  house  during  kit  continuance  in  office  ;  '*  and  tlie  lirBt 
section  of  (he  second  nrticte,  which  declarer  that  "no  senator  or 
reprcsciitiifive,  ur  pernon  hotdinff  an  affiee  of  trtut  or  profit  under 
the  United  States,  shall  ho  appointed  an  elector."*  It  ia  far 
from  being  certain  that  the  convention  itxelf  ever  contemplated 
that  sointont  or  representatives  should  be  snbiected  to  impeach- 
ment;^ and  it  is  vei-y  far  from  being  clear  that  sucJi  a  subjixniun 
would  have  been  either  politic  or  desirable. 

§  794.    The  reasoning  of  tJie  Federalist  on  this  snbject.  in  ao- 

lir  to  sumo  objections  to  vesting  the  trial  of  impeachments  in 

tie  Senates  does  not  lead  to  the  conclusion  that  the  learned  an- 


I  I  Tnck.  Blark.  Comoi.  App.  S7,  98 ;  Bawl*  on  CansL  lA.  tS,  pf>.  £13,  314,  31S, 
219. 

*  Sm  Bloiura  Ttkl,  p|L  S4.  SS :  Id.  4».  SO.  SI,  St. 

•  S«l  aeo  Smth  Cuoliu  DcUtot  on  the  Ooutlutioa,  JnuUT.  1788  (printtd  th 
dwlMMu,  16S1).  F^  11,  13,  18. 


CB.  X.] 


niR  StStATE. 


«K 


tlior  Uioiight  the  soDatorB  Mahh  to  impeschment.  Some  parts  of 
it  iroiiM  rnth«r  lucHuc  the  oilier  way.  "Th«  convention  might 
with  propritig,"  it  is  Biiid,  "hare  meditated  the  puniahment  of 
the  executive  for  n  dcviutioti  from  the  instructions  of  the  f^enate, 
or  ft  wank  of  integrity  in  tite  coutluet  of  the  nci^^utiutiona  com- 
mitted to  him.  Thoy  mig:ht  aIho  have  had  in  view  the  puniah- 
m4>nt  of  n  few  lending  individunU  in  the  Henatc.  who  ahoald  have 
prostituted  their  iiitluence  in  Ihut  hody  as  the  mi-re>enary  instru- 
menta  of  foreign  corruption.  But  they  could  not  with  more,  or 
with  e>r|ua1  prrtpriety,  have  contemplated  the  impeachment  and 
punishment  of  two-tliirds  of  the  Senate  conacnting  to  an  im* 
proper  treaty,  than  of  a  majority  of  that  or  of  the  othtr  hraKch  of 
th*<  ln'jitlalure  conflenliiig  in  a  iMrniciouR  oruncnnitlitiitionnl  law, 
a  prittciplr.  tehieh-,  I  Mierr,  hat  n<rr«-r  bt-tn  admitted  into  tinif  i/ov- 
emment,"  etc.  "And  yet,  what  reason  is  there  that  a  majority 
of  the  IIouso  of  Rrprew^ntativosi,  aacrificing  the  intepeata  of  the 
society  by  an  unjiuit  and  tyrannical  act  of  legislation,  should 
escape  with  impunity,  more  than  two-thirds  of  the  Senate  sacri- 
ficinji  the  sumo  interests  in  an  injurious  treaty  with  a  forei^ 
power?  The  truth  is,  that,  in  all  sueh  cases,  it  is  essi'ulial  to 
the  freedom  and  to  the  necessary  independence  of  tJie  delibera- 
tions of  the  body,  that  thf  mt-mlierM  of  it  ahotilJ  f>e  exempt  /rmn 
puni»hment  for  aett  done  in  a  colUetitK  capaeitif ;  and  the  secur- 
ity to  the  society  must  depend  on  the  care  which  is  taken  to  con* 
fide  the  trust  to  proper  bands,  to  make  it  their  Interest  to  execute 
it  with  fidelity,  and  to  make  it  as  diflieuU  as  |>>MsihIe  for  them 
to  eomhino  in  any  interest  opposite  to  that  of  tlie  public  good." ' 
And  it  is  certain  thut,  in  some  of  the  State  conventions,  the 
members  of  Coti^^ss  were  admiltod  by  tlie  friends  of  the  Con- 
Blitution  not  to  be  objects  of  the  imiieaching  power.* 

§  795.  It  may  be  admitted  that  a  breach  of  dnty  is  as  repre- 
hensible in  a  legislator  as  in  an  executive  or  judicial  officer ;  but 
it  does  not  follow  tiM  the  sante  remedy  shouhl  be  applied  in  each 
caae,  or  tluit  a  remedy  applicaUe  to  the  one  may  not  be  unJit  or 
inconvonient  in  the  other.  Senat«ni  and  reprew-ntatives  arc  at 
short  periods  ma<ie  responsible  to  the  people,  and  may  be  rejected 
by  them.  And  for  personal  offences  not  purely  political,  they  arc 
responsible  to  the  common  tnbunals  of  justice  and  tlie  laws  of  the 

t  Th*  Foknlul,  Ko.  6S. 

■  >  UM'*  DiUtM,  tS,  tt,  tS.  la.  Ml,  ST. 


CONtiTITtrriON'  OP  TUK   DKITED   flTAT^.  [BOOK  ItL 

land.  If  a  member  of  Congreu  were  liable  to  be  impeached  for 
conduct  in  his  legislative  capacity  at  the  will  of  a  majority,  it 
might  furnish  many  prtrtcxU  for  an  irritated  and  prtNlomiaant 
faction  to  destroy  the  character  aiid  intercvpt  tlic  iuflueucc  of  the 
widest  and  most  exalted  patriots,  who  were  rmistinfir  their  opprcs- 
iuonn  or  develo|jinir  their  jiruHigacy.  It  is,  thcix-fore,  with  gn-at 
reason  \irgcd  that  a  legislator  should  be  above  all  fear  and  inllu- 
euce  of  this  sort  in  his  public  conduct.  The  impeoclimeDt  of 
a  IcfinBlator  for  bis  oITioiul  acts  has  hitherto  been  nnacknowledg 
as  matter  of  right,  in  Uic  atinals  of  England  and  America, 
silence  of  this  sort  is  conclusive  as  to  the  state  of  public  opinioD  in 
relation  to  the  impolicy  and  danger  of  conferring  thn  power.' 

§  T9ti.  Tlic  next  inquiry  is,  what  are  impeacbable  offencea  L 
They  are  "  treason,  bribery,  or  otlier  high  crimes  and  misdeme 
ors."  For  U»e  detiiiition  of  treason,  resort  may  be  had  to  the  Con- 
stitution it»elf ;  Imt  for  tlie  definition  of  bribery,  resort  is  naturally 
and  necossarily  had  to  the  common  law  ;  for  that,  as  tlte  commoB 
basis  of  our  jurisprudence,  can  alone  furnlali  the  proper  expo«ition 
of  the  nature  and  limits  of  this  ofTcnoe.  The  only  practica]  que*- 
tJon  is,  what  are  to  l>o  deemed  high  crimes  and  misderaeanoiB  ? 
Now,  neither  the  Constitution  nor  any  statute  of  the  United  State* 
has  in  any  manner  defined  any  orinn*,  except  trea-san  and  bribery, 
to  be  high  ciinies  and  niisdcmeaiiois,  and  as  such  ini|ieai'liablc. 
In  what  manner,  then,  are  they  to  be  ascertained  ?  Is  the  silcnoe 
of  tlie  statute-book  to  bo  deemed  conclusiive  in  favor  of  the  party 
until  OongretiA  have  made  a  legislative  deelaration  and  enumera- 
tion of  the  offences  which  shall  be  deemed  high  crimes  and  inii> 
demeanors?  If  so,  then,  as  has  been  truly  remarked,'  the  powor 
of  impeachment,  except  as  to  the  two  cxpa-sned  cases,  is  a  oou- 
picte  nullity,  and  the  party  is  wholly  dUpunisluible,  however  enor- 
mous may  be  bis  corruption  or  criminality.*  It  will  not  be  sufTtcient 

1  Tha  upimcnu  ot  caanm},  tor  tad  agiinii  a  wnatiir't  b«lag  «a  (mpmehabU  oSi 
will  1w  found  M  lurgn  In  ili«  |daUd  trial  of  WiUian  Uouat,  M  kii  inptaduBMil 
fVWUi.  17M). 

■  Bawlv  oa  Ui«  CanMitntiMi.  A.  tB,  (h  ITS. 

•  Upon  tbc  trial  of  Mr.  JtMka  ChaM,  111  18M,  It  ■ntoaUMdad  inUtaimnrni 
(Ic/mc*,  ttut  no  dTi]  olBcn  wu  lnlpMd■•U^  but  "  t«T  trwMD,  bribny.  oa(Tii|itun,  nr 
»tm»  liigli  aim*  or  nladniMnor  <muiiliaj  tn  amw  att  iimt  cr  «iaUted  te  vialatiim  ^ 
lave  ferbtdding  or  oaminaiMUng  U."  "  Hcii«c  It  cleuly  nanll^  that  iw  d*il  oSear  bI 
the  Ciillol  Stala  oui  be  impcachTJ,  cxcspt  (or  MfOM  tMeaat  for  aiiM)  ba  may  W 
ladktail  at  law  ;  and  that  no  eridMM  can  be  t«M>l*«d  an  au  bn[>aMhRwM.  ck*|>i  nick. 


C».  X.] 


THE  BIWATK. 


581 


to  say  that,  in  the  cotioa  where  any  offence  in  puniahcd  hj  ftny 
statute  ot  the  United  States,  it  may  and  ought  to  be  deemed  an 
itnpvaehablc  offence.  It  is  not  every  offence  that  by  the  Constidi- 
tioD  is  »u  impeachable.  It  rouAt  not  only  be  an  offence,  but  a  kiffh 
crime  and  mi»dcmeunor.  Besides,  there  are  many  most  flagrant 
offence*  which,  by  tlie  statutes  of  the  United  Stntes,  are  piminha- 
ble  only  when  committed  in  apccial  places  and  within  peculiar 
jurisdictions,  as,  fur  instance,  on  the  hi^i  seas,  or  in  forts,  navy- 
yards,  and  ar»cnal«  coded  to  the  United  States.  Suppose  Die 
offence  is  committed  in  some  other  than  these  privileged  pluees,  or 
under  circumstances  not  reached  by  any  statute  of  the  United 
States,  would  it  be  impeachable  ? 

§  797.  Again,  there  arc  many  offences  purely  political,  vhich 
bare  been  held  to  be  within  the  reach  of  parliamentary  im|)eacb> 
menls,  not  one  of  which  is  En  the  slightest  manner  alluded  to  in 
our  statute-liook.     And.  indi-cd,  political  offences  are  of  so  ™rioiiB 
and  complex  a  character,  ko  utterably  incapable  of  being  defined 
or  classilied,  that  the  task  of  positive  legislation  would  be  imprac- 
ticable, if  it  were  not  almost  absurd  to  attempt  it.    What,  for  in- 
stance, could  positive  legislation  do  in  cas'^s  of  impeachment  like 
the  charges  against  Warren  Hastings  in  1788  ?    Resort,  then,  must 
had  either  to  parliamentary  practice  and  the  common  law.  in 
^Ordcr  to  ascertain  wtiat  are  liigh  crimes  and  misdemeanors,  or  the 
vholo  subject  must  be  left  to  the  arbitrur}-  discretion  of  tlic  Senate 
for  the  time  being.    The  latter  is  so  incom|uttihle  with  (he  geiiiu» 
<if  our  institutions,  (hat  no  lawyer  or  statesman  would  l>e  mcline<l  to 
|«ount«nance  so  aI)solute  a  despotism  of  opinion  and  practice,  which 
[might  make  that  a  crime  at  one  time,  or  in  one  penion,  which 
[would  he  deeniiMl  innocent  at  another  time,  or  in  another  person. 
■  Tlie  only  xafe  guide  in  such  cases  must  Im>  the  common  law,  which 
is  the  guardian  at  once  of  private  rights  and  public  lilicrtics.    And, 
however  much  it  may  fall  in  with  the  politiral  theories  of  certain 
statesmen  and  jurists  to  deny  the  exi8tenee  of  a  common  law  be- 
lon^png  to  and  applicable  to  the  nation  in  ordinary  cases,  no  one 
ihas  as  yet  been  l>o)d  enough  to  assort  that  the  power  of  impeach- 
Fment  is  limited  to  offences  positively  deRned  in  the  statute-book 
of  the  Union  as  impeachable  high  crimes  and  miRdemeanors. 

Hi.oB  HI  indicbnait  at  kw  far  Um  aune  oSbnot,  vo«1d  be  ulniiMblit.''    1  C)M*e'* 
THtl,  pp.  47,  IS.    Tba  matt  iotOiat  n«  incited  on  bf  Ua  ewnuoL    3  Chue'* 


m 


CONSTITUTION   OP  THE  01(1X13)  eTATIS.  [BOOK  nt 


$  798.  The  doctrine,  indeed,  would  bo  truly  alarming,  tliat  the 
commoa  law  did  Rot  regulate,  interpret,  and  oontml  the  powera 
and  duties  of  the  court  of  impftachmcnt.  ^Vhat,  othf^nriiie,  vaald 
become  of  the  riilea  of  eridenco,  the  legal  notionn  of  crimes,  and 
the  application  of  principles  of  public  or  municipal  joriaprudence 
to  tlie  charges  against  the  accused  ?  It  would  be  a  most  extraor- 
dinary anomaly,  that  while  every  citizen  ni  every  Stale  ori^nally 
composing  the  Union  would  be  cntitli.^  to  tbv  common  law  as  his 
birthright,  and  at  once  his  protector  and  guide,  sa  a  citizen  of 
the  Union,  or  an  olTiccr  of  the  Union,  he  would  be  8ubj<.'vt«d  to 
no  law,  to  no  principles,  to  no  rules  of  evidence.  It  is  the  booot 
of  English  jurispnidcnoe,  and  without  it  tlic  power  of  impcach- 
mcul  would  he  an  inttilurable  grievance,  that  in  trials  by  impeach- 
ment tlie  law  differs  not  in  essentials  from  criminal  prosecutions 
before  inferior  courts.  The  same  rules  of  evidence,  the  soma 
ic^al  notions  of  crimes  and  punishments,  prevail.  For  impeach- 
ments are  not  framed  to  alter  the  law,  but  to  carry  it  into  more 
effectual  execution,  where  it  might  be  obstmcted  by  the  influence 
of  too  powerful  delin(|uent«,or  not  easily  discerned  in  the  ordinary 
course  of  jurisdiction,  by  reason  of  the  peculiar  quality  of  the 
alleged  crimes.'  lliose  who  believe  that  tho  oonunon  law,  so  far 
as  it  is  applicable,  constitutes  a  part  of  the  law  of  the  United 
States  in  tlieir  sovereign  character  as  a  nation,  not  as  a  oource  of 
jurisdiction,  but  as  a  guide  and  check  and  expositor  in  the  admin- 
istration of  the  rights,  duties,  and  jurisdiction  conferred  by  the 
Constitution  and  laws,  will  find  no  difficulty  in  affirming  the  same 
doctrines  to  be  applicable  to  the  Senate  as  a  court  of  impeach- 
ments. These  who  denounce  the  common  law  as  having  any 
application  or  existence  in  regard  to  the  national  goreniment 
must  he  neccissarily  driven  to  maintain  that  the  power  of  impcodi- 
ment  is,  until  Congress  shall  legislate,  a  mere  nullity,  or  that  it 
is  despotic,  both  in  its  reach  and  in  its  proceedings.'  (a)  It  is 
romarkubic  that  the  Jirst  Congress,  assembled  in  Octolier,  1774, 
in  their  famous  declaration  of  tho  rights  of  tho  colonics,  asserted 

I  a  WoaUwn.  Lect  40i  pf.  SI  I.  SIS  ;  4  BUek.  Comin.  Sai,  CtiritUtn'*  Kote  (1). 

*  It  i*  not  mj  itiiiiB  in  tidt  |ittM  to  •KM'  upon  tlia  diaraaiioa  of  the  niadi.oaalfD- 
ttnei  qttMttoD,  wiMthar  tli*  commoa  law  waitilaMB  ■  put  of  the  nAtlnu/  jnrbpcn- 
itnee,  tu  «>)i)tr»dutiti(.'lii9a  to  lliat  of  the  Statn.  Tht  Utnoi  miler  sill  bnO  tke  inb- 
joet  amflf  dbeawd  in  Uw  wotiu  to  tthkh  be  Iih  btsn  alntdy  rrttttnt,  Dtowly,  I 

(n)  6^  VriMton  I-.  PnUn.  8  Fct  »l :  KcndaU  >.  Dntl«t  SUIm,  1£  Pot.  «8(. 


CH.  X.] 


THE  SEKA71L 


588 


"  that  the  respective  coloniea  are  entitled  to  the  common  Inw  of 
Enfi;land,  and  that  (hey  are  entitled  to  the  benefit  of  such  of  the 
Eiijzlifih  statutes  as  csititcd  at  the  time  of  their  colonixation,  and 
wliich  thi'j  have  by  experience  respectirelj'  found  t*)  iw  applica* 
blc  to  thoir  HCvcral  local  and  otht'r  circumstances." '  It  irouM  be 
ningular  cooiigli  rf,  in  framiu);  a  national  ^vernmi>nt^  that 
common  law,  eo  jiuitly  dear  U>  the  colonics  as  their  guide  and 
protection,  should  cuaae  to  have  any  cxistenvo,  aa  applicable  to 
tlic  ()Ovn.-r»,  ri^hfs.  Mid  prinl^««  of  tho  people,  or  the  obtigationB 
and  dulii'ft  und  powers  of  Ihc  dcpartmouls  of  the  national  gorem- 
mcnt.  If  tiie  common  law  has  do  existcnco  as  to  the  Union  as 
a  rule  or  fpjide,  liie  whole  proceedings  arc  completely  st  the 
arbitrary  pleasure  of  the  govcmmcot  awl  its  functionaries  in  all 
its  departments. 

§  7l'y.  ('onprsB  have  unhesitatingly  adopted  the  conclusion 
that  no  previous  statute  is  necessary  to  authorise  an  impeachment 
for  any  otiicial  misconduct;  and  the  rules  of  proceediu);,  and  the 
rules  of  efidence,  as  well  as  the  prinrJples  of  dcctsiun.  have  been 
uoifonnly  reptlatcd  by  the  known  doctrines  of  t)ic  common  law 
and  parliamentary  ueago.  In  tho  few  cases  of  impeachment  which 
bav«  hitherto  been  tried,  no  one  of  tb«  charges  has  rested  upon 
any  statutable  misdemeanors.'  U  seems,  then,  to  be  the  settled 
doctrine  of  the  high  court  of  impeachment  that,  (hough  the  oom- 
juoo  law  caimot  be  a  foundation  of  a  jurisdiction  not  given  by  tho 
Constitution  or  law«,  that  jurisdiction,  when  given,  attaches,  and 
is  to  be  exercised  according  tt>  the  rules  of  the  common  law  ;  und 
tltat  what  are  and  what  are  not  high  crimes  and  misdeuManore 
is  to  be  ascertained  by  a  recurrence  to  that  great  basis  of  Arueri- 
can  jurisprudence.^  The  reasoning  tiy  which  the  power  of  tho 
House  of  Ropresentatires  to  punish  for  contempts  (which  ore 
breaches  of  privileges,  and  offences  not  deGned  by  any  positive 

TMe.  Dluk.  Ccnm.  App.  Km*  R,  ji.  in,  «to. ;  la  Ui«  npoct  of  Xhr  Virginia  Ltgiik- 
tawaT  l7MllsnO;iDft«at«i«tbtConilit.cli.Ml  p^SU,  Ha.  :  and  ia  UuponMAUM 
Jiit1«Iitlion,  and  IIif  (othoritiBi  theiv  nted.  1  Kant,ConuD.  Lcet.  It,  p.  ail,  'I  Mf.  ; 
Vorth  AnnicoM  Bctmw,  Jatjr,  Ittl :  Mr.  Dijird'*  i^ifoth,  DvUt*  on  tli«  Jitdicknr  {« 
1802,  p.  171 

>  1  J«anu)  of  Omgiftt,  0<rt.  1774,  p.  M. 

*  tl  Mwy  la  tuiipoial  llial  file  lint  cbarga  in  IIm  mlclM  of  biipcMkuMt  tflalntt 
WillfaBi  HloiiBt  wu  ■  UalataUi)  ollnrn  ■  tmt  on  an  accurau  oitMiBallon  nfiba  Mt  oT 
Qm^ptm  of  1761.  ii  will  be  (onml  not  to  ban  beta  ■« 

■  Sea  JrHnaani  lluoal,  f  53,  titla.  tmftadkmail;  Blo«irt'tTrinlon  trnpoMttnunl, 
pp.  S»  to   SI  i  Id.  »  to  M  iPUlMUIpUa.  ITM).    B«t   aee  Id.  pp-  *>  t"  *<-    la 


564 


COSSTITtmOS  OF  THE  UNITED   8TATKS.  [BOOK  IB. 


laws)  him  been  iiplield  by  the  Supreme  Court,  sttnds  upon  simiUr 
grounds ;  for  if  the  Hwise  had  no  jurisdicttuD  to  piinUli  for  oao> 
tempts  until  the  acts  had  been  pre^iouslj  dufiuvd  ttud  ascertained 
by  positive  law,  it  is  clear  tbut  the  proceu  of  arrest  would  be 
illegal' 

§  800.  In  examiniDg  the  parliamentary  hiKtory  of  impeachmenia, 
it  will  be  found  thut  many  offences,  not  easily  deiiuable  by  law, 
and  many  of  a  purely  political  character,  have  beco  deemed  high 
crimes  and  raiisdenieftnors  worthy  of  this  extraordinary  remedy. 
Thoa,  lord  chancellors  and  judges  and  other  magistimles  bare 
not  only  Wen  impeached  for  bribery,  and  acting  grossly  contraty 
to  the  duties  of  their  office,  but  for  misleading  Uicir  sorcrcign  fay 
unconstitutional  opinions,  and  for  attempts  to  subvert  the  funda- 
mental laws,  and  introduce  arbitrary  power.'  So,  where  a  lord 
chancellor  has  been  thought  to  have  put  the  great  seal  to  an  ig- 
RominiooB  treaty,  a  lord  admiral  to  liave  neglected  the  safeguard 
of  the  sea,  an  ambassador  to  hare  betrayed  his  troat,  a  privy 
cooncillor  to  have  projinunded  or  support^  pernicious  and  di^ 
honorable  measures,  or  a  conRdential  adviser  of  his  soTereigo  to 
have  obtained  exorbitant  grants  or  incompatible  emploi'meDts,^ 
the»e  hare  been  all  deemed  impeachable  offences.*  Son>c  of  the  af* 
fences,  indeed,  for  which  persons  were  impeached  in  iJie  early  sgas 
of  British  jurisprudence,  would  now  seem  harsh  and  serere ;  (a) 
but  perhaps  they  were  rendered  necessary  by  existing  corrnptioaa. 
and  the  importance  of  suppressing  a  spirit  of  favoritimm  and  court 
intrigue.  Thus,  persons  have  been  impeached  for  giving  bad 
counsel  to  the  king,  advising  a  prejudicial  peace,  enticing  the 
king  to  act  against  the  advice  of  Parliament,  pnrchasiDi;  officeSt 
giving  medicine  to  the  king  without  advice  of  physicians,  pr^ 

laotbr  cUiM  oT  tb*  CMiUaiUMi.  pown-  k  gjnn  to  Uie  Praddtnt  l«  p*al  i*|«t«*w  aad 
paidoBi  />r  ^0mm  ogonrt  lit  OMaif  Staltt.  cxecpt  fa  «ma  el  iarovhwnl  -.  tku 
thwiajt  tlut  impMchaUe  oOkuett  u*  lUstiMd  cAmm  ■griiwl  tba  CaUod  Stuaa.  U 
Uu  8*tU  maj  then  dccWe  nhat  tn  eBimxt ■ftlBit  Uu  tTnitaii  State*  bf  miwiiw 
to  iIm  OoaiiMni  b«,  vh^  mtj  not  th>  <MMt*  of  tin  Utiiud  SlalM,  Vtia  itw  csfnM 
ddifptka  «r  juri*dlctlon  ov«t  "■OaiMNaiMlvatBmt  M|*iaU«mil*r  tW  uttWity 
at  tb«  tJBUrd  £tatM,- far  ilw  act  of  ITSfl.  eh.  n.  I II.  act  In  tbr  IBBM  Mann  r 


>  Dnana.  AsdMiM,  «  WImI.  H.  1M  t  B««k  m  Omrtit.  cb.  ».  n<.  371,  aT& 

>  t  W(n4cbb<i.  LmI.  40.  p.  sea  1  Cmk.  Dig.  dtfe  I\tHiam,mK  L.  3>  ta  U. 
■  2  W«adMM,  Uct  SSb  ^  MS;  C^hb.  DJ*.  Hihtmumt,  1-  » to  M. 


(a)  TU*  n  cf  conna  ■  Isfiu  Jt'afwr; 
ib*  BMa&lBC  ii^  tka  oSenocs  wooM  not  tarn 


tia  itaiihl  iliwrilinfif  llm  wnta  pasM- 
msUlftOktad. 


THB  BENATE. 


6S5 


^ 
I 


^ 
^ 
^ 


Tenting  other  persons  from  giving  counsel  to  tho  king  except  in 
their  presence,  ond  proairing  exorbitant  persoukl  grants  from 
the  king.)  Itut  othoni,  again,  were  founded  in  the  most  sulutuiy 
public  justice ;  such  as  iuipeachmcnls  for  malversations  and  neg- 
lects in  office,  for  encouraging  pirates,  for  oflicinl  oppression,  ex- 
tortions, and  deceits,  and  especially  for  putting  good  maj^strates 
out  of  office  and  advancing  bad.*  One  cainiut  but  be  struck,  in 
this  slight  ennmeralion,  with  tho  utter  unfilnras  of  tlie  common 
tribnnalfl  of  justice  to  take  cognizance  of  such  ofTenccs,  and  with 
the  entire  propriety  of  confiding  the  jurisdiction  over  tlicm  to  a 
tribunal  capable  of  onderstanding  and  reforming  and  scrutiniz- 
ing the  politj  of  the  state,*  and  of  sufTicicnt  dignity  to  maintain 
the  independence  and  reputation  of  worthy  public  ofliwrs. 

5  801.  Another  inquir\'  growing  out  of  this  subject  is,  whetlier, 
under  the  Constitution,  any  acts  are  impeachable  except  such  as 
are  committed  under  color  of  office,  and  whether  the  party  can 
be  inip<^'«ched  tliorofor  after  he  has  ceased  to  hold  office.  A 
learned  commentator  seems  to  have  taken  it  for  granted  that  the 
liability  to  impeachment  extends  to  all  who  have  Ixjcn,  as  well  as 
to  all  who  are,  in  public  office.*  Upon  the  other  point  his  lan- 
guage U  OS  follows :  '*  The  legitimate  causes  of  im)>eAchment  hare 
been  already  briefly  noticed.  They  can  have  reference  only  to 
public  character  and  official  duty.  The  words  of  the  text  are, 
*  treason,  bribery,  and  other  high  crimes  and  misdemeanors/ 
Tlie  treason  cuntemplnted  must  he  agninst  the  United  States. 
In  general,  those  offences  which  may  bo  committed  equally  by  a 
private  person  as  a  public  officer  are  not  the  subjects  of  impcach- 
tnont  Murder,  burglary,  roMwry,  and  indeed  all  offences  not 
immediately  connected  with  office,  except  the  two  expressly  mcn- 
tioricd,  are  left  to  the  ordinary  couree  of  judieial  proceeding,  and 
neither  house  can  regularly  inquire  into  tbcm,  except  for  the  pur- 
pose of  expelling  a  meml>er."' 

§  802,  It  do4-s  not  appear  that  either  of  these  points  has  1>gcd 
judicially  settled  by  the  court  having  properly  cugaix^unec  of  them. 
In  the  case  of  William  Blount,  tho  plea  of  the  defendant  expressly 


>  Com.  7%.  pM-liamaU,  L.  tS  to  40. 
■  Com.  ffig.  /^triiamnl,  L.  S8  to  40. 

•  S  Woodwon,  tect  40.  p.  002. 

*  Bawie  im  CoatL  eh.  3%  ^  SIS ;  Bloont'i  Trial,  pp.  ».  SO  (FUhd.  ITM). 
'  *  Bawie  on  CbortilatbM,  A.  21,  )>.  216. 


$80 


OONSTITCTION  OP  THE  OKITED  STATES.  [BOOK  HI. 


pDl  both  of  thom  sa  exceptions  to  the  jurisdiction,  ftllegiog  liuU 
at  thv  tjine  of  the  impeachioent  he,  Blount,  wa»  not  a  senator 
(t1ioui:li  hu  wutt  Kt  the  time  of  the  charges  laid  agaln»t  him),  and 
ttiut  he  wad  nut  charged  i>y  the  articles  of  impeachment  with  har- 
!»g  committed  any  crime  or  misdemeanor  in  the  execution  of  any 
civil  olhc^:  ht-ld  imder  the  Uaited  Statea,  nor  with  any  malconduct 
in  a  civil  officv,  or  abase  of  any  public  trust  in  the  execution 
thereof.'  The  deciaion,  however,  turned  upon  another  point,  vii., 
that  a  neiiator  was  not  an  impeachable  officer.' 

§  $03.  Alt  it  i«  declared  in  one  clause  of  the  Conatitution  that 
**  judgment  in  cascn  of  impeachment  shall  not  extend  further  than 
ft  removal  from  office,  and  di«(iunlifieation  to  hold  any  office  of 
honor,  trust,  or  profit  under  the  United  States,"  and  io  another 
olaoae,  that  the  "  Provident,  Vice-President,  and  all  civil  oQioeni  uf 
tlie  Unit«d  States  shall  be  removed  from  oRioc  on  im|*oachnieat 
for,  and  conviction  of,  treason,  bribery,  or  other  high  crimes  or 
mii^Ienkeanors,"  it  would  seem  to  follow  tliat  the  ISt-uato,  on  the 
comiiction,  were  bound  in  all  coses  to  enter  a  jndginejit  of  re- 
moval from  office,  thoug;h  it  has  a  di.tcrelion  as  to  infUcting  the 
punishment  of  disqualification.*  If,  then,  there  must  be  a  judg> 
mcut  of  removal  from  office,  it  would  seem  to  follow  that  the  Cott- 
stittition  0>mN-mplHt4>d  that  the  party  vtts  still  in  office  at  the  time 
of  im[)cu<^liin<:nt.  If  he  wa?  not,  his  offence  was  still  liable  to  be 
tried  and  punished  in  the  ordinary  tribunals  of  justice.  And  it 
might  be  argued,  with  some  force,  that  it  would  he  a  vain  exercise 
of  authority  to  try  a  <!elin<]uent  for  an  impeachable  olTcnce,  when 
the  moat  important  object  for  which  the  remedy  whs  pven  was  no 
longer  necessary  or  attainable.  And  although  a  ju(l)^ment  of  dis- 
ijualilicatinn  might  still  be  pronounced,  the  language  of  tlie  C'nn- 
fltitution  may  create  some  doubt  whether  it  can  be  pronounced 
witbunt  beiu^  coupled  with  n  removal  from  office.*  lliero  is  also 
much  force  in  the  remark  that  an  impeachment  is  a  proceeding 
purely  of  a  political  nature.  It  is  not  so  much  designed  Io  puuiiili 
an   offender  as  to  secure  the  stale  againat  grosa  oflicial  mi^c- 

■  See  Sonilf  Jooninl.  Mtb  Jsn.  ITM ;  4  Tackar'*  Black.  Camm,  Jt\<f.  AT,  ftS. 

■  SerB*ut  oa  Canat.  L».  cb.  $3.  p.  363. 

■  Vfon  thr  impeMhment  anil  fonijclioa  uf  John  Pickfring  (IStli  of  Muviv  I^IK 
ibe  CBlf  pUBiabmrait  nwuded  bj  Uic  Senate  wu  ■  remoTal  fnm  oAee.     Sm 
Blount'i  Trial,  01  W  «  ;  Id.  70.  83,  83  <riuUd.  17M) ;  Sugexti  m  Onwt  1^,  < 
a».  p-aet 

«  8«  Rkmnt'i  Trial.  47.  tS  ;  14.  Kl  to  4»  (I>hili4.  1  r»)  i  U  83- 


THR   SENATE. 


58T 


¥ 


ueanora.     It  touches  neither  his  person  sor  liiB  property,  but 
simpJ;  diveitts  liiin  of  hiH  polilical  capacity.' 

§  8&4.  Ttie  other  ptiint  is  one  of  more  tliflicuUj.  In  the  argu- 
ment upon  Klonnt'H  impeachment,  it  was  pressed  witli  g:rcAt  car- 
nestnefls  tlitt  tliere  is  not  a  syllable  in  the  Constitution  wbich 
confines  impeachments  to  oflicial  acts,  and  it  is  aRainHt  the  plain- 
est dictates  of  common-tieniu!  Ihut  such  restraint  should  lie  imposed 
upon  it.  Suppose  a  jud^u  should  countenance  or  aid  insurants 
in  a  iaeditatt.-d  conHpimcy  ur  instirreetitHi  against  the  f^ovemmcnt. 
This  is  nut  a  judieutl  act,  and  yot  it  ou^lit  certainly  to  be  impeach- 
ablo.  He  may  bo  caJIcd  upon  lo  try  the  very  persons  whom  ho 
has  aided.*  Suppose  a  jud)^  or  other  oHicer  to  receive  a  bribe  not 
connected  with  his  judicial  office,  could  he  be  entitled  to  any  pub- 
lic tonfidcnce  ?  Would  not  these  reasons  for  bis  removal  bo  just 
as  strong  as  if  it  were  u  t'sso  of  an  official  bribe  t  The  ai^ument 
on  the  other  side  vas.  that  the  power  of  im(>cachnient  was  strictly 
confined  to  civil  ofHcersof  the  United  States,  imd  this  neecssunly 
implied  that  it  must  be  limited  to  malconduct  in  office.* 
.  §  805.  It  is  not  intended  to  cxprr-ss  any  opinion  iii  these  oom- 
mrataries  as  to  which  is  the  true  e.\p<witioii  of  the  ('oiiMitutioD 
on  the  points  above  stated.  They  are  brotif;ht  before  the  learned 
reader  as  mutters  still  gufi  jmlice.  the  final  decision  of  which  may 
be  reasonably  left  to  the  hijrli  tribunal  constituting  the  court  of 
impeachment  when  the  occasion  shall  arise. 

§  806.  This  subjeet  may  be  concluded  by  a  summary  statement 
of  the  mode  of  proce«din)r  in  tlic  institution  and  trial  of  impeach- 
ments, as  it  is  of  rare  oocurrcnco,  and  not  goi-cmed  by  tlio  formal- 
itiea  of  the  ordinary  prosecutiona  in  courts  at  law. 

§  807.  When,  thou,  an  officer  is  known  or  suspected  to  be 
gnilty  of  malversation  in  ofKce,  some  moml>er  of    the  lionse  of 


>  Ht.  B>}-ud.    Bloimf  ■  TiU,  3S  (Fhlkd.  ITM) ;  M.  80^  61. 

■  Bknmt'i  Trial.  3»,  W  (Plulad.  im> ;  U.  8A 

•  BlMBf  I  Trial.  4a  to  4» :  Id.  61;  M  Id  <«  (Phaadoliihk.  17M^  WIIUui  Blawt 
WM  MptlM  from  tk*  t^iiato  a  fow  dij«  baton  IKU  lnpMchiiMat(b>im  Umh  a  (nsm- 
bert.  Mil  om  Uwt  ott*iaan  hi  mu,  tiy  a  iMohitkn  «t  ikt  ShmM  (Y«m^  tt ;  Hay,  1^ 
ilecluvtl  tobv  "gailtjata  Ai^  nui^aHiiiHrcnUrelyliicionibttat  withkiainUlcniUI 
■nj  itiiiy  ai  ■  •rimtor."  Tha  obiMa  abaiB»d  «m  art  deGaad  bj  anjr  (taluta  of  the 
ITniled  Sute*.  It  WM  bf  «i  atttnpt  to  udaoe  •■  United  SUtaa  lailiui  intarpntrr 
froia  U*  duty,  and  to  aUcnata  ih»  atfwtloM  and  coaHiitMa  q(  ibc  lodiaat  from  Uie 
public  offlmt  rMUlinff  anottx  tiMim  IM.  Jeara.  of  Siniat*^  8th  Jal;,  17V7 ;  Beignat 
«n  C<mat.  La«.  An.pf.3St,  SST. 


588 


CONSTITUTION  OF  THE  UKITBO  StATM.  [tMMlK  fit. 


Bcpresentaiivcs  nauallj-  bringn  forward  a  rfiRolution  to  acct»c  the 
party,  or  for  the  appointnaent  of  a  committee  to  connider  and  report 
upon  the  charges  laid  against  him.  The  lattor  is  the  ordinatr 
course,  and  the  report  of  the  committee  usually  contains,  if  adTcru 
to  the  party,  a  Htatcment  of  the  charges,  and  recommends  a  reso- 
lution that  he  be  impeached  therefor.*  If  the  rciwlution  is  adopted 
by  tho  House,  a  cummtttce  is  then  appointed  to  impeach  the  party 
at  the  bar  of  tlic  .Senate,  and  to  state  that  the  articles  against  him 
will  be  exhibited  in  due  time,  and  made  good  before  ihc  Senate, 
and  to  demand  that  the  Heriate  take  order  for  the  apjteitnuice  of 
the  party  to  answer  to  the  impeachment."  Tliis  being  accordingly 
done,  the  Senate  signify  their  witlingnesa  to  take  wich  order  ;  and 
articles  are  then  prepared  by  a  committee,  under  the  direction  of 
the  House  of  fleprcftentatives,  which,  when  reported  to  and  a{>- 
provcd  by  the  Honse,  are  then  presented  in  the  like  manner  to  the 
Senate,  and  a  committee  of  mana^rs  are  appointed  to  conduct  the 
impeachment.*  As  soon  as  the  articles  are  thus  pR-sentcd,  the  Sen- 
ate issue  a  process,  summoning  the  party  to  nppeAr  at  a  given  day 
before  tlicm  to  answer  the  articlea.'  The  process  is  served  by  the 
sergeant-at-armfl  of  the  Senate,  and  due  return  is  made  thereof 
under  oath. 

§  808.  The  articles  thus  exhibited  need  not,  and  indeed  do 
not,  pursue  the  strict  form  and  accuracy  of  an  indictment.*  They 
are  sometimes  quite  general  in  the  form  of  the  allegations,  but  al- 
ways contain,  or  ought  to  contain,  so  much  certainty  aa  to  enable 
the  party  to  put  himself  upon  the  proper  defence,  and  also,  in  case 
of  an  acquittal,  to  a^'sil  himself  of  it  as  a  bar  to  another  impeach- 
ment. Additional  articles  may  be  exhibited,  perhaps,  at  any  stage 
of  the  prosecution.* 

§  80^.  When  the  return  day  of  the  process  for  appearonoc  has 
arrived,  the  .Senate  resolve  themselves  into  a  court  of  impeachioent, 
and  the  senators  are  at  that  time,  or  before,  solemnly  sworn  or 

*  Odm.  Dig.  PariiMMml,  L.  SO ;  8  Vonimm.  leeL  M.  fip.  MS,  <(M  i  JsBeraoa'* 
Uonual,  Not.  M. 

*  Coni.  Dig.  Parliamemt,  L.  SO ;  S  Wcodetan,  L«ct  10,  pp.  SOS,  Ml ;  JaB«Mn1| 
lianual,  ttt.  hi. 

■  Com.  Dig.  Parliiaartil,  L.  II ;  Jrff<raMi'i  Mutnal,  «M.  5S. 

*  Com.  Dig.  Parliamnii,  L.  14,  IS,  19,  90 ;  J*lT*TMn'*  H*niHJ.  *Mt.  £3. 

*  3  WwdMM'a  l>a.  40,  p^  eOS,  «0a  i  Oow.  Dig.  iterfMMnil,  U  SI  t  Fcrter  i 
Cram  Uw,  8S>.  SM. 

*  tU<k  00  CVMUt.  di.  Xt,  p.  SIS. 


VH.  X.] 


THE  6ENATB. 


689 


aJTinned  to  do  iin|mrtial  jtutico  upon  the  imp<>achinent,  according 
to  the  CoUBtitution  and  lavrs  of  the  United  Staten.  The  person 
impeached  is  th«n  called  to  appear  and  atutwor  the  articles.  If  he 
doitt  not  appear  io  pcnwa  or  by  attomur,  hiu  default  is  recorded, 
and  the  Scnutu  inu)'  proceed  rx  parU  to  the  trial  of  the  impeacb- 
mc-nt.  If  he  does  appi-4ir  in  person  or  by  attoniey,  his  appearance 
is  recorded.  Couii»el  for  tliu  parties  are  admitted  to  appear  and 
to  be  heard  upon  an  impeachment.! 

§  810.  When  the  party  appears,  he  is  entitled  to  be  furnished 
with  a  copy  of  the  articles  of  inipcaclimcut,  and  time  is  allowed 
hiin  to  prepare  his  answer  tliereto.  The  answer,  like  the  articles, 
is  exempted  from  the  necessity  of  observing  great  strictness  of 
form.  The  party  may  plead  that  he  is  not  giiilty  as  to  part,  and 
make  a  further  defence  as  to  the  residue;  or  he  may,  in  a  few 
words,  Having  all  exceptions,  deny  the  whole  chai^  or  charges ;' 
or  he  may  plead  specially,  in  justification  or  excuse  of  the  sup- 
posed offences,  all  the  circumstances  attendant  upon  the  case. 
And  he  is  also  indulged  with  the  liberty  of  offering  argumentative 
reasons,  as  well  aa  facts,  against  the  charges,  in  aufifiort  and  as 
part  of  his  answer  to  repel  them.  It  is  usual  to  give  a  full  and 
particular  answer  separately  to  each  article  of  the  accusation.' 

§  811.  When  the  answer  is  prepared  and  given  in,thene:it  rcg- 
ular  proceeding  is  for  the  House  of  Representatives  to  file  a  replica- 
tion to  tite  answer  in  writing,  in  substance  denying  the  trutli  and 
validity  of  the  defence  stated  in  the  answcr,aDd  arernngthe  truth 
and  suRiciency  of  the  charges,  and  the  readiness  of  the  House  to 
prove  them  at  such  convenient  time  and  place  aa  shall  be  appointed 
for  that  purpoac  by  the  ^Minate.*  A  time  is  then  assigned  for  the 
trial,  and  the  Senate,  at  tliat  period  or  before,  adjust  the  prelimi- 
naries and  other  proceedings  proper  to  be  had  before  and  at  the 
trial,  by  fixed  roKulaliuns,  which  are  made  known  to  the  House  of 
Rcprcacntativcs  and  to  the  {tftrty  accused.^  On  the  day  appointed 
for  the  trial,  the  House  of  Representatives  appear  at  tJjc  bar  of  the 
Senate,  citJter  in  a  body  or  by  the  managers  selected  for  that  pur- 
pose, to  proceed  with  the  trial."    Process  to  compel  Ibo  attendance 


\  JdTarMii*!  llmnBtt,  not  GS. 

■  2  Wa«l««an,  LMt  M.  pp.  MM,  60T  ;  Con.  Dig.  FnrliaauiU,  L.  23. 

*  S  WMilnM.  VkU  t(i.  (1.  eOT  :  3ttSmom'»  Hmuti,  mc*.  S3. 

*  EtM  t  WoodMon.  Uft.  to.  p.  SOT ;  Co*.  Dig.  F^imm^.  U  31. 

*  See  3  Weeileeaii.  Lett.  M,  p.  <1«.  *  JtOmaB'i  Muual,  kcL  Ct. 


&90 


CONSTITUTIOK  OP  THE  DNITKD  STATEa.  [BOOK  lit. 


of  witnesaea  is  previouHly  i«aaed  at  tlie  request  of  either  partj,  bj 
order  of  the  Senate,  and  ut  the  time  and  place  appointed  they  an 
bound  to  appear  and  give  testimony.  On  the  day  of  triu),  the 
parties  being  ready,  tho  manaj^ra  to  conduct  Ibe  prooccutioa  opuo 
it  on  behalf  of  the  Hou8«  uf  Representative,  oae  or  more  of  them 
deltrcrinf;  an  explanatory  iij>co«b,  cither  of  tlic  whole  uhargca  or 
of  one  or  more  of  tliem.  Tho  proooedings  arc  tlieii  coDduded 
substantially  as  they  are  upon  common  judicial  trials,  as  to  the 
admission  or  rejection  of  tctttiniony,  the  examination  and  criKi^- 
examination  of  witnesses,  tlie  rul(:s  of  evidence,  and  (he  legal  doc^ 
trines  as  to  crimes  and  misdemeanors.'  When  the  whcrfe  erideoc 
hns  been  gone  through,  and  pnrtiCH  on  eacli  aide  have  been  full 
heard,  the  Senate  then  proceed  to  the  oonsideratioo  of  the  casft^ 
If  any  debates  arise, they  are  conducted  in  secret;  if  none  arise, 
or  after  they  are  ended,  a  day  is  assigned  for  a  Una!  public  deci- 
sion by  yens  and  nays  upon  eacli  separate  charge  in  the  articles  ai 
impeachment.  Wlien  the  court  is  assembled  for  this  purp<MC,  the 
qnestion  in  propounded  to  each  member  of  the  Senate  by 
by  tiie  president  of  the  Senate,  in  the  foUoiHng  manner  UfMin  escll'' 
article,  tho  same  being  fust  read  by  the  secretary  of  the  Senate : 

*•  Mr. ,  how  say  you,  Is  the  re8pon<lent  guilty  or  not  guilty  of 

a  high  crime  and  misdemeanor,  ss  cliarged  in  tlie article  of 

impeachment?"  Whereupon  the  member  rises  in  his  place  and 
ansvera  guilty  or  not  guilty,  as  bis  opinion  is.  If  upon  no  article 
two-thirds  of  the  Senate  decide  that  the  party  is  guilty,  he  is 
entitled  to  an  acquittal,  and  is  declared  accordingly  to  be  acquit 
by  the  president  of  the  Senate.  If  he  is  convicted  of  all  or  any  of 
the  articles,  the  Senate  then  proceed  to  fix  and  declare  the  proper 
pnnishment.*  The  pardoning  power  of  the  President  does  not,  as 
will  bo  presently  seen,  extend  to  judgments  upon  impoachmeat; 
and  hence,  when  once  pronounced,  they  I>gcoom)  nbsotuto 
irrerersible.' 

$  612.  Having  thus  gone  through  the  vliolo  subject  of  Impeach- 
ments, it  only  remains  toobserve  that  a  close  survey  of  the  aystcm, 

>  S  VettlMoit,  LkL  en  :  Jplttnou't  Ijasual.  Kft  S3. 

*  Thla  Munmar?,  wIud  do  othtr  antliaKlj  ji  cilM.  bu  been  drawn  up  tma  thr  y<nr- 
tJot,  in  the  ounoT  imptachau-nt  alrauly  til«l  by  ibe  S*Mtte  of  the  Vtir 
naiiMly,  of  WUIuat  Blovnl,  is  17*8 ;  <J  Jotui  Plrknrii^  la  1S04  ;  of  Sunii' :  n  i 

IMt  ranil  of  Jama  H.  Vtuk.  la  1B81.     8m  Um  Sauau  Joumala  of  Hum  Titata.     Sa 
•Im  J«a«non'a  MaiiM),  mM.  Ml. 

■An.  1,  Mrt.  S,  tUmt  t. 


fflB  SBNA1T. 


SOI 


nnleiw  wa  are  cgregiouitly  deoeired,  will  completely  dcinooKtrAtc 
the  wisdom  of  the  arrangemenU  made  in  evcrr  p«rt  of  it  The 
jumdiction  to  JDipcacIi  in  [tlaced,  where  it  should  lifi,  in  th«  po«- 
sesaion  and  power  of  the  immediate  repreaentativett  of  the  peopla 
The  trial  ia  before  a  liod;  of  great  dignit>-  and  ai>ility  aiid  indo- 
pcndeooe,  possciwhig  the  requisite  knowledge  and  firmnew  to  act 

I  with  vigor  and  la  di-eidc  with  impartiality  upon  the  charges.  Tlie 
]tersona  subjected  to  the  trial  are  olRocro  of  the  national  govern* 
meat,  and  tlio  ofTeucva  are  gueh  aa  may  affect  the  rights,  duties, 
and  relatioim  of  the  party  accuMXl  to  the  public  in  his  political  or 
oflicioi  character,  citlier  directly  or  remotely.  The  general  rules 
of  law  and  evidence  applicable  to  coounon  trials  arc  interposed  to 
ct  the  party  against  the  excrciac  of  wanton  oppression  and 
litrar)'  power.  And  the  dnul  judgment  is  confint'd  to  a  removal 
from  and  disqualification  for  office,  thus  limiting  the  punishment 
to  8ucl)  modes  of  redress  as  arc  peculiarly  fit  for  a  jtoUtical  tri- 
bunal to  administer,  and  as  will  teeur«  the  public  a^ust  political 
injuries.  Tn  other  respects,  the  offence  is  left  to  be  disposed  of  by 
tile  common  tribunals  of  justice,  according  to  the  laws  of  the  land, 
upon  an  indictment  found  by  a  grand  jury,  and  a  (rial  by  a  jury  of 
peers,  before  wliom  the  party  ia  lo  stand  for  hia  final  deliverance, 
like  his  fcltow-eiltzens. 
^  §  813.  In  rc«pect  to  the  impeachment  of  the  President  and  Vice- 
B  President',  It  may  be  remarked  that  tliey  are,  upon  motircs  of  high 
State  policy,  made  liable  to  impcacliment  while  they  yet  remaia 
in  office.  In  England,  the  const itittionnl  raaxim  ia  that  the  king 
can  do  no  wrong.  His  ministera  and  adviflers  may  be  iinpeaclied 
and  pimifthed  ;  but  he  is,  by  his  prerogative,  placed  a)>ove  all  peN 
Bonal  amenability  to  the  lavs  for  his  acta.'  Tn  some  of  the  State 
conHtitutiona,  no  explicit  provision  is  made  for  the  impeachment 
of  the  chief  magiatrate ;  and  in  Delaware  and  Virginia  he  was 
not  (under  tbeir  old  constitutions)  impeachable  until  he  was  out 
of  office.'  So  that  no  immediate  remedy  in  those  States  waa  pro- 
I  Tided  for  gross  malversations  and  corruptions  in  office,  and  the 
only  redress  lay  In  llic  elective  power,  followed  up  by  prooecu- 
tions  after  tlie  ]Nirty  had  ce^uied  to  hold  bis  office.  Yet  cases  may 
I  be  imagined  where  a  momentary  delusion  might  induce  a  majority 
I  of  the  people  to  re-elect  a  corrupt  magistrate,  and  thus  the  remedy 

>  1  BUck.  ComM.  SM,  247. 
•  Tbo  Ptdtnlbt,  So.  ». 


69S  COMSTITDTION   OP  TEE  ITHITED  STATES.  [BOOK  IIL 

would  be  at  once  distant  and  imcertidn.  The  proTiaicm  in  the 
Constitution  of  the  United  States,  on  the  other  hand,  holds  out  a 
deep  and  immediate  responsibility,  as  a  check  upon  arbitrary 
power ;  and  compels  the  chief  magistrate,  aa  veil  as  the  httmbleat 
citizen,  to  bend  to  the  majesty  of  the  laws. 


CH.  II.] 


ELKCTIOKa. 


0W 


C^AI>T^:R  xi. 


ELBCTI0H8  AKD  HEBTIKGfl  OP  COKOBESa 


§  814.  The  first  clause  of  the  fourth  section  of  the  first  article 
is  tiK  follows:  "  Tli«  tiroes,  placen.  and  manner  of  holding  elections 
for  K^'iiiitors  and  reprcseutativcs  ahall  be  prcscribod  in  each  State 
hy  the  legislature  thereof.  But  the  Conp^rcsa  maj^,  at  any  time,  by 
lav,  nmke  or  alter  such  regulatiims,  except  u  to  the  place  of 
choosing  Bonaturs."  (a) 

thft  mnw  ]vnon  «h>ll  nnt  liava  r*otlT«d  a 
nujority  of  (hs  votoi  in  rnch  houor,  or  it 
tithtr  hoiiH  thall  hnvf  failnl  ta  take  pro- 
ceeding! u  rvquirtd  by  thii  act,  thfl  joint 
•Mtiubtj  ihiill  Ihi'n  prv«c<il  In  choouc,  by 
s  tina  met  n>U  of  mt  li  iii«iab«r  }iita*nt>  a 
penon  for  tlio  iiuriwn*  afunaaid ;  ud  ihs 
pinon  having  a  iiir^orit]r  of  all  ths  Totca 
«r  ihft  mU  )otDt  aMomhlj,  a  niajoffly  et 
all  tlio  mptnbcn  elected  to  both  hooica  ba- 
iug  procnt  and  toting  ahall  ht  dncland 
duly  rlw-tBii  ;  anil  in  om  ba  )jrrKa  uliall 
RmiTf  luck  majority  on  the  Gret  day,  tha 
joint  (Mcmbly  ihall  nuvt  at  tw*lra  o'clock 
tucridian  of  each  nuixefdlng  day  daring 
tha  atoaloii  of  Ilio  l'-f.-li>laliii«,  and  taka 
at  Itact  ons  vob^  nntit  a  MValor  ihall  W 
cket«d. 

"  Sw.  9.  That,  vhcnartrim  the  mart- 
Ing  of  Iha  lagltUton  of  any  Stattv  a  ra- 
«a»cy  ahall  axitt  in  Iha  rriirunntiitMn  ef 
mA  8ut«  im  tht  Senate  <J  tba  Caited 
States  Mid  Icfiitalnrv  *hkll  prootrd,  on 
Iha  ••oond  Tarijiy  aftn  llie  roMnunea- 
mant  and  onpuiiMLion  of  lla  ttwtoa,  ta 
slcct  a  ptrsMi  t*  &U  mch  Tiouicy,  in  Iha 
manner  heninbafore  prarMrd  forthf  aba, 
lion  «f  a  •enatar  for  the  fiill  Una ;  «ad  If 
a  rtoancy  thall  hai<fiMi  during  I  he  iwltim 
»f  Um  k^latar^  IImb  an  tkt  wwi 
TWiUay  after  tbe  kgUatuia  tball  h«*« 
bntn  oritaniuil  and  iJiall  har*  »atl0i  «t 
«uch  racancy. 

"8t&  8.  That  it  ahall  b*  tbe  duty  «l 


(a)  Sm  e*  partt  SioboR  100  V.  S. 
Sn  i  Ex  paru  Claiko^  lU  39d ;  Cnited 
8Ut«a  r.  Oalh  lot  IT.  S.  05,  An  act  n- 
guliting  tli«  eirdion  of  Hnnton  hai  bpcD 
|iaMod.  "  Tbe  kgiiUlure  of  raeh  Slain 
•hkh  ahall  ba  tiumai  nait  ptvceding  llw 
«x{unitii)n  uf  thff  time  for  vliicli  any  ■«>• 
atot  was  elected  to  n[irHcnl  laid  State  m 
Cont^riM.  alwll.  nn  the  ircond  Tnnday  af- 
lei  the  meptiiig  and  organimtion  therrof, 
proceed  to  rlctit  a  aotuior  in  C««igraa,  in 
the  placr  of  mrh  unator  to  going  oat  of 
olUo^  ill  the  foltovtug  maiinpr ;  Bach 
bouie  diall  o|itnly,  hj  a  ann  net  Tole  of 
aach  mcmbtt  pntral,  name  ana  pCTNai  for 
BMiator  la  Canpa«  fram  lahl  Siata ;  and 
tbe  nam«  of  thv  ptron  so  voted  for,  alio 
(ball  bare  a  majority  of  the  «th>o1e  iium- 
bar  of  vutea  laat  In  nach  honat,  dull  bo 
anIaiBd  on  the  jonnui  of  oach  houa*  by 
tbeclerhoraerretary  Ihrreof  ;bntil»ilhor 
bona*  ahall  fnil  to  (^n  lueb  Mvority  to 
any  pmon  an  *ai<l  day,  that  bet  ahall  ha 
•nl«nd  on  the  jeariMl,  At  tvalva  o'clock 
meridian  of  tha  day  folloaing  that  on 
wblah  procradlnp  are  ToquJrnd  to  lako 
plaoa  aa  afcivMiid,  Ihr  membrn  of  the  two 
hiHure  ahall  eonrene  in  joint  aiMnbly, 
and  the  jonraa]  ot  each  bonae  abalJ  tben 
be  read:  and  U  the anaapoMM  thai!  have 
raeelvad  a  majority  of  all  Iba  T0«aa  in  each 
booat^  a»fh  p«n«n  ahall  be  dedarwl  doly 
riaolnl  aanalor  to  wpaatnt  aajd  8tat*  in 
Um  Ctngtam  of  tha  trnltcd  8UUa ;  bat  it 
VOL.  1.  —  38 


50-1 


CONSTITCTIOK  OP  THE  UNITED  STATES.  [BOOK  [D. 


§  815.  This  claitse  do«8  not  appear  to  have  attracted  much  et> 
tciitioii,  or  to  have  encountered  much  op])o«ition  in  the  convention, 
at  Iciutt  80  far  u  caii  be  galliorod  from  tJi«  jounial  of  that  body.' 
But  it  n-EM  afterwards  aseftiU-d  by  tlie  o|i]>onent8  of  tlie  Coiiiitttu- 
tion,  both  in  nnd  out  of  tlie  Htato  conventioua,  with  uncommoa 
zeal  and  virulvncc.  The  objection  was  not  to  that  part  of  the 
clau»c  which  vc»t«  in  the  State  ]egislature»  the  power  of  prcscrib* 
ing  tiiv  timvs,  places,  and  nmnner  of  holding  elections ;  for  »o  far 
it  w«a  a  surrender  of  power  to  the  State  governmenta.  But  it  wa 
to  the  8iiponnt*nding  power  of  Congress  to  roakr  or  alter  sadi* 
regulatioim.  It  was  said  that  snch  a  su[MTin tending  power  would 
be  dangerous  to  the  liberties  of  the  people  and  to  a  just  exercii*e 
of  their  privileges  in  elections.  Congreti.i  miglit  prescribe  the 
times  of  elections  so  tnireasonably  as  to  ])revent  the  altendanoe  of 
the  electors,  or  tlie  place  at  ao  inconvenient  a  distance  from  the 
body  of  the  electors  as  to  prevent  a  dtie  exercise  of  the  right  (A 
chrnce.  And  Congress  ntight  contrive  tlie  ntannfr  of  holding  elec- 
tions so  as  to  exclude  all  but  their  own  favoritea  from  office.  They 
might  modify  the  right  of  election  as  they  nhoiild  please;  the 
might  regulate  Uie  number  of  votes  by  the  quantity  of  propert] 
without  involving  any  repugnancy  to  tlie  Constitutioo.'  The 
and  other  Hii;^ationa  of  a  similar  nature,  calculated  to  spr 
terror  and  alarm  among  (he  people)  were  dwelt  on  with  peculil 
emphaflia. 

§  816.  In  answer  to  all  such  reasoning,  it  was  ui^>d  tltat  tlie 
was  not  a  single  article  in  the  whole  system  more  completely  de^^ 
fensible.    Its  propriety  rested  upon  this  plain  proposition,  tbat 
every  government  ought  to  contain  in  itself  the  means  of  its 
OWD  preservation.'     If,  in   the  Conatittitiou,  there  were  some 

>  Journil  of  Cmvration,  pp.  310.  S40 ;  M.  SSI,  37*. 

■  1  Ellioti IVbiitn,  (S  to  SO ;  Id  93  to  6B ;  3 >:iUc)|-(Det«tas,«8. 30.  7<.  14MM: 
8EUi(ii'iD«Wi«.5T  t<>71:  3  Amtrma  Hiumm,  43S  ;  14  U£ ;  Id.  MS ;  3  AmmIo 
HuMnnw  (23 :  S  Elliot*  Dclata,  t71. 

•  Tha  Ft.kfiilbt.  No.  fiO ;  1  P.IIiof*  IVUIm,  ZT9,  S77. 


tbe  govwimr  eC  tfa*  Blali*  rrooi  vhkb  amj 
moMca  ■hall  have  bfcn  ohoivn  u  «ltiiv> 
will,  U  rettitj  hii  tltctwn,  mtitr  the  hmI 
or  iIk  Sute.  1»  tlio  ]iK«il«nt  «f  the  Svoato 
oTtlifl  tJnitM  8t«tM,  irbticti«Ttiliwtt  (lull 
bn  founttriignod  by  iIm  ircrvtarjtJ  aUW 
Ot  tiM  StkU^"    Apfiwti  Inly  a,  )H«. 


TliB  ■lectio*  of  tifffWOTtitl  WW  >ft  tf  ml 
t»  pfondod  Ita  hj  Of  Act  at  I'oapws « 
FcbcMi;  1,  1672.  vliich  reqsina  UudM- 
iiMH  to  l>«  in  ilittncti  of  tontiifaaa*  Ur<- 

rttorr.  Mill  to  he  bcU  on  tbe  TuMJay  Mit 
*/tw  Iba  Ont  H<aidaj;iii  Nen^nW  in  ' 
ytu  lS7<k*Dd  anty  Im  tmh  I 


ca.  XI.] 


ELEtTIOXS. 


596 


^ 


^ 


^ 

^ 


departures  from  this  principle  (as  it  might  be  admitted  there 
wore),  they  were  matters  of  regret,  and  dictated  by  a  controlling 
moral  or  political  necessity,  and  they  oiiglit  not  to  lie  extended. 
It  wfis  obviously  impracticable  to  frame  and  insert  in  tJie  C'niisti' 
tutiou  an  election  law  which  would  be  applicable  to  all  po«»i1)te 
changes  m  the  aititation  of  the  country,  and  convenient  for  all  Uie 
Stales.  A  discretionary  power  over  elections  must  be  vented 
somewhere.  I'here  seemed  but  three  ways  in  which  it  could  be 
reasonably  organised.  It  might  be  lodged  either  wholly  in  the 
national  legislature,  or  wholly  in  the  Klate  legislatures,  or  prima- 
rily in  the  latter  and  ultimately  in  the  fonni>r.  The  last  was  the 
mode  adopted  by  the  convention.  The  regidntion  of  elections  \m 
submitted,  in  the  first  instance,  to  the  local  governments,  which, 
in  ordinary  cases  and  when  no  impro|»er  views  prevail,  may  both 
conveniently  and  natisfaatorily  be  by  them  exercised.  But  in 
extraordinary  circurastances,  the  power  is  reserved  to  the  national 
goremment,  so  that  it  may  not  be  abused,  and  thus  hazard  the 
■ofety  and  permanence  of  the  Union.*  Nor  let  it  be  thought  that 
such  an  occurrence  is  wholly  imaginary.  It  is  a  known  fact  that, 
under  the  confederation,  Itliode  Island,  at  a  very  critical  period, 
withdrew  her  delegates  from  Congress,  and  thus  prevented  some 
important  measiiroA  from  being  carrie<l.' 

§  8t7.  Nothing  can  be  more  evident  than  that  an  exclusive 
power  in  the  State  legislatiirra  to  regulate  elections  for  the  na- 
tional government  would  leave  the  existence  of  the  Union  entirely 
at  their  mercy.  They  could,  at  any  time,  annihilate  it  by  neglect- 
ing to  provi<le  for  the  choice  of  persons  to  administer  its  affairs. 
It  is  no  sufficient  answer  that  such  an  abttse  of  power  is  not  prol>- 
ablc.  Its  poHsibility  is.  in  a  constitutional  view,  decisive  against 
taking  such  a  risk ;  and  there  is  no  reason  for  taking  it.  The 
Constitution  ought  to  be  safe  against  fears  of  this  sort,  and  gainst 
temptations  to  undertake  such  a  project.  It  is  true  that  the  State 
legtsUtures  may,  by  refusing  to  ohoose  senators,  interrupt  the  op- 
erations of  the  national  government,  and  thus  involve  the  country 
in  general  niin.  But  1>ecaune,  with  a  view  to  the  estsblinhmcDt  of 
tlte  Constitution,  this  risk  was  necessarily  taken  when  the  appoint- 
ment of  senators  was  vested  in  the  State  lei^latnrcs,  still  it  did 
not  follow  tliat  a  power  so  dangerous  ought  to  be  conceded  in 

■  Th*  FiiVnlut,  So.S»i»  Elliot's  IVWtM.  38.  Mi  Id.  S74,  VJ. 
*  1  EUiot'*  DtUtM.  41,  tS  i  Tbe  t'nlenlUl,  Ho.  S3. 


506 


cossrmjnoN  of  the  united  states.        [book  iit. 


cases  where  the  same  o«ccs«ity  did  not  exist  On  the  contrary,  jt 
became  the  dutj^  of  the  coiivention,  on  this  very  account,  not  (o 
multiply  tliu  chuncM  of  mischievous  attempts  of  this  sort.  The 
risk,  too,  would  be  much  greater  in  regard  to  an  exclusive  power 
uver  thu  elections  of  representatives  tlian  over  the  appointment  of 
scnutors.  The  latter  are  chosen  for  six  years,  the  representatives 
fur  two  years.  There  is  a  gradual  rotation  of  office  in  the  Senate, 
every  two  years,  of  one-third  of  the  body,  and  a  quorum  is  to  con- 
sist of  n  mere  majority.  The  result  of  theac  circumstances  would 
naturally  be,  that  a  combination  of  a  few  Htates,  for  a  short  [leriod, 
to  intermit  the  ap|xiintmeut  of  senators,  would  not  interrupt  the 
ojiorations  or  annihilate  the  existence  of  that  body.  And  it  is  not 
against  permanent,  but  against  temporary  combinations  erf  the 
HtateH,  that  there  is  any  necessity  to  provide.  A  temporary  com- 
bination might  proceed  altogether  from  the  sinister  designs  and 
intritnx^a  of  a  few  leading  memlrors  of  the  ^tato  legialaturea.  A 
]>prnianeut  combination  could  only  arise  from  the  deep-rooted 
disaffection  of  a  great  majority  of  the  people ;  and,  under  saoh 
circumstancoB.  the  existence  of  such  a  national  povcrnmcnt  would 
neith^T  be  desirable  nor  practicable.'  Tl»e  very  shortness  of  the 
period  of  the  elections  of  the  House  of  Represeatatives  might,  on 
Ibc  other  hand,  furniHh  means  and  motives  to  teuii>orarv'  comlHiuk 
tions  to  destroy  the  national  government ;  and  every  returning 
election  might  produce  a  delicate  crisis  in  our  national  affain, 
subversive  of  the  public  tranquillity,  and  encouraging  to  every  sort 
of  faction.^ 

§  818.  There  is  a  great  distinction  between  the  objects  and  in- 
terests of  the  poc^lv  and  the  political  objects  and  interests  of  Uieir 
rulers.  The  people  may  be  warmly  attached  to  the  Union  and  its 
powers  nod  its  operations,  while  their  representatives,  stimulated 
by  the  natural  rivalship  of  power  and  the  hupca  of  personal  ag- 
grnndizemcut,  may  be  in  a  very  opposito  temper,  and  artfully 
using  all  their  influence  t«  cripple  or  destroy  the  national  govern- 
nient.^  Their  motives  and  objects  may  not  at  lirst  bo  clearly  dis- 
cerned; but  time  and  reflection  will  enable  the  people  to  under- 
stand their  on-n  true  interests,  and  to  guard  themselves  against 
insidious  factions.     Besides,  there  will  be  occasions  in  which  the 

•  The  F*di>r«lW.  No.  09.  «  IHJ. 

>  Tbo  F«d«n1bt,  »«.  GP ;  1  RlliM'a  V<iUit%  iS  to  SS ;  Id.  47,  SS  ;  a  OUeCa  D*- 


d 


KLBCnOMS. 


69T 


pooplu  will  be  excited  to  undue  rcBentmoDts  against  the  Datioaul 
government.  With  so  effectual  a  vreapon  in  their  hands  as  the 
excl  uaivc  power  of  regulating  elections  for  the  national  govern- 
ment, the  combination  of  a.  few  men  in  some  of  the  large  States 
migitt,  bj-  seizing  the  opportunity  of  some  casual  disaETectioa 
among  the  poopio,  accomplish  the  destruction  of  the  Union. 
And  it  ought  not  to  be  overlooked  that,  as  a  solid  government 
will  make  us  more  and  more  an  obJMt  of  jealousy  to  the  nations 
of  liuropo,80  there  will  be  a  perpetual  temptation  on  their  part  to 
generate  iatriguefl  of  this  sort  for  tJie  purgiose  of  subverting  it.^ 

§  81!).  I'bcre  is,  too,  in  the  nature  of  such  a  provision,  some- 
thing incongruous,  if  not  absurd.  What  would  be  said  of  a  clause 
introduced  into  the  national  Constitution  to  regulate  (he  State 
elections  of  the  members  of  the  Stale  legislature*  ?  It  would  be 
deemed  a  moot  unwarrantal)lo  transfer  of  power,  indicating  a  pre- 
me^litated  drnign  tn  destroy  the  Htate  g<»vemment8.*  It  would  be 
deemed  so  flagrant  a  violation  of  principle  as  to  re<)uire  no  com- 
menL  It  would  be  said,  and  justly,  that  the  State  governments 
ought  to  po«w(HM  the  power  of  self -existence  and  self-organization, 
indopcDdent  of  the  plctaaure  of  the  national  government  Why 
does  not  the  same  reasoning  npply  to  the  national  government  ? 
What  reason  is  tlierc  to  suppose  that  the  State  governments  will 
be  more  true  to  the  Union  than  the  national  government  will  be 
to  the  State  governments  ? 

§  820.  If,  then,  there  is  no  peculiar  fitnrctci  In  delegating  such 
a  power  to  the  State  legislatures,  if  it  might  be  hazardous  and  in- 
convenient, let  us  see  whether  tbero  arc  any  solid  dangers  from 
confiding  tJie  superintending  and  ultimate  power  over  elections  to 
the  national  government.  There  is  no  pretence  to  say  that  tlic 
power  in  the  national  government  can  bo  used  so  ns  to  exclude 
any  State  from  its  share  in  the  representation  in  Congrcaa.  Nor 
can  it  bo  said,  with  correctness,  that  Congress  vnn,  in  any  way, 
alter  the  rights  or  <|U!Llificatiuns  of  vutent.  "Die  muvtt  that  can  be 
urged,  with  any  sliow  of  argument,  is,  that  the  power  might,  in  a 
given  case,  Ira  employed  in  such  a  manner  us  to  promote  the 
election  of  some  favorite  candidate  or  favorite  class  of  men,  in 
exclusion  of  others,  by  confining  the  places  of  election  to  particu- 
lar districts,  and  rendering  it  impracticable  for  the  citizt-ns  nt  large 
to  partake  in  tbo  choice.    The  whole  argument  proceeds  upon  a 

>  lU  r«4intUl>  M&  es.  '  lUd. 


598 


CONSTITUTION   OP  THK  VNITBD  STATIS.  [SOOK  HL 


au|][KMilioii  the  most  cbimerical.  There  are  no  radonal  csIcdIb- 
tioiis  on  which  it  cui  rest,  and  every  probabilitjr  ia  aicsinttt  it 
Who  urc  to  piu)8  the  laws  for  rcgulutini;  elections?  The  ('un- 
gnxA  of  t]ie  United  States,  cumpoeed  uf  a  Semite  chosen  bjr  the 
State  tcf^islatiires,  and  of  reprcscntativM  obown  by  the  people  of 
the  Sla(e«.  Can  it  l>e  imuKined  that  thexu  jiorsuns  will  comliine 
to  dcfraitd  their  coiistituout«  of  their  rights,  or  to  orertbrow  tlie 
8tate  authorities  or  the  State  inliuenco  ?  The  very  atu-mpt  would 
rotise  universal  indignation,  and  produce  an  immediate  revolt 
among  the  great  masH  of  tlie  people,  hoatlcd  and  directed  by  the 
Htato  govern uieiita.'  And  what  motive  ouuld  there  be  in  Oon- 
grem  to  produce  such  reaulta  ?  The  very  diasimilarity  in  the  in- 
grt'dientfl  composing  the  national  govunimt^'nt  forbids  even  the 
supposition  of  any  effectual  coml>inatiou  for  sueli  a  purpose.  The 
interests,  the  habits,  the  institutions,  the  local  umploymenia,  the 
stat<?  of  property,  the  genius,  and  the  munnora  of  the  pt-ople  of  the 
different  States  are  so  various,  and  even  opposite,  that  it  would  be 
impowtiblc  to  bring  a  majority  of  either  House  to  agree  npon  any 
plan  of  elections  which  should  favor  any  particular  man,  Or  cIiim 
of  nion,  in  any  State.  In  some  States  commerce  is,  or  may  be, 
the  prcdominajit  intvri-st ;  in  othets,  manufacttires ;  in  uthcni,  agri- 
culture. Physical  aa  well  as  moral  causes  will  necessitnly  nourish 
in  dilToront  Stuk-s  dtfferont  inclinaliofls  and  propcnttiti(^«  on  all 
subjects  of  this  sort.  If  ttiero  is  any  cliuts  which  is  likely  to  have 
a  predominant  influence,  it  must  be  either  the  comnierciiil  or  the 
landed  claaa.  If  cither  of  these  could  acquire  such  an  inflitence, 
it  is  infinitely  more  probuble  that  It  would  Ik  acquired  in  the  State 
than  in  the  rational  councils.'  In  the  latter  there  will  be  such  i 
mixture  of  all  interests  that  it  will  be  impracticable  to  adopt  any 
rule  for  nil  the  States  giving  any  preference  to  classes  or  intermts 
fwinded  upon  sectional  or  personal  considerations.  What  might 
suit  a  few  States  well  would  find  »  general  resistance  from  all  thft 
other  States. 

§  621.  If  it  is  said  that  the  cIcctiiHtB  mi^t  be  so  managed  a* 
to  give  a  predoininiinl  influence  to  the  wealthy  and  the  well-l>om 
{as  Ihey  are  iusiiliouMly  culled),  the  supposition  is  not  lese  vi»> 
ionary.  What  possible  mode  is  then  to  accomplish  such  a  pur- 
pose ?  The  wealthy  and  the  wcll-hom  an  not  conliii..-d  to  any 
particular  spots  in  any  State;  nor  arc  their  interests  pcnnuuently 
■  Tlw  reienlitt,  Ho.  60.  >  lUd. 


CB.  Xt.] 


naoHom. 


699 


I 

I 

I" 


lixed  anywhere.  Tbeir  prop«rtir  may  oonsiat  of  stock  or  other 
pprsona)  prupcrty,  iw  wroU  us  of  land,  of  manufactorir-ji  on  prvut 
strcjinin  ur  on  uurrow  rivulets  or  in  soqiiratered  dells.  Tlieir 
Vi'(»ll)i  may  cunsiat  of  largi-)  pluotuttoDB  iii  th<!  bosom  of  the  coun- 
try, or  Inrms  on  the  borders  of  the  ocean.  IIow  vain  mnst  it  be 
to  le);i)tlnte  upon  the  regulation  of  eleotions  with  reference  to  oir* 
cujniitances  80  inlinitely  varied  and  so  infinitely  variable!  The 
very  siiggeRtion  ib  preposterous.  No  {KMuible  method  of  regglat* 
ing  tlie  time,  mode,  or  place  of  elections  could  giv%  to  the  rich 
or  elevated  a  general  or  permanent  advantage  in  the  elections. 
The  only  practical  mode  of  ncoomiilishing  it  (that  of  a  property 
qualilication  of  voters  or  candidates)  is  excludiM)  in  the  scheme 
of  the  national  government.'  And  if  it  were  ;)0»«ible  that  such 
a  denign  could  be  accomplished  to  tlie  injury  of  the  pi-ople  at  a 
single  election,  it  is  c«rtain  that  the  unjwptilarity  of  the  meas- 
ure would  imiiie<nat'-ly  drive  the  menihent  from  office  who  aided 
in  it,  and  they  would  In>  succeeded  )>y  others  who  would  mor« 
justly  represent  the  public  will  and  the  public  interests.  A  cun- 
ning so  nliallow  would  be  easily  detected,  and  would  be  ss  con* 
tcmptible  from  its  folly  ax  it  would  be  dilhcult  in  its  oiferations. 

§  822.  OtJ)er  considerations  are  entitled  to  great  weight.  Hie 
Cuitslilulion  gives  to  the  State  legislatures  the  power  to  regulate 
the  tiiike,  place,  and  manner  of  holding  elections,  and  this  will 

•0  desirable  a  boon  in  their  posseaaion  on  account  of  their  abil- 
ity' to  adapt  the  rogulntion  from  time  to  time  to  the  peculiar  lo< 
cat  or  (Ktlitica)  convenience  of  the  Slates,  that  ita  repre8entati\'«8 
in  Congress  will  not  be  brought  to  assent  to  any  general  system 
by  CnngrcfW,  unlena  frtHn  an  extromo  necessity  or  a  very  urgent 
exigency.  Indeed,  the  danger  rather  is,  that  when  such  neces- 
sity or  exigency  actually  arises,  the  measure  will  be  poetpoued  and 
perhaps  defeated  by  the  unpopularity  of  tlie  cxcreisc  of  the  power. 
All  the  States  will,  under  coimnon  circumstiuicca,  have  a  local 
interest  and  local  pride  in  preventing  any  interference  by  Con- 
gress, and  it  is  incredible  that  this  influence  should  not  be  felt  as 
well  in  the  .Senate  ns  in  the  Ilutisc.  It  is  not  too  much,  tjicre- 
forc,  to  j)re«iiuie  tliat  it  will  not  txs  reiiortcd  to  by  Congress  until 
there  has  been  some  extraordinary  abuse  or  danger  in  leaving  it 

the  discretion  of  the  States  resi>nctively.     And  it  is  no  smalt 
imniendation  of  thin  superviHing  power,  that  it  will  naturally 

>  TU  FedcnlK  Xo.  60. 


600 


CONSTITDTION    OF  THE  UKITKO  STATEB.  [boOE  m. 


operate  u  A  check  upon  undue  State  legislation,  since  the  latter 
might  pi-ecipitate  the  very  enl  whicli  the  popular  opiiiion  would 
be  aioit  sulicitous  to  avoid.  A  preventive  of  this  sort,  addressed 
a  pru>ri  to  State  jealousy  aud  State  interest,  would  become  a 
most  salutary  remedy,  uot  from  tta  actual  application,  but  from 
its  moral  influence. 

§  ^-lA.  It  was  said  that  the  Constitutioa  might  have  provided 
that  the  elootiiHia  should  be  m  countioB.  Thia  was  true;  but  it 
would,  as  a  general  rulo,  afford  very  little  relief  against  a  poaci* 
ble  abuse,  for  i-ountieB  differ  greatly  in  sixc,  in  roads,  and  in  ae- 
oommodations  for  elections,  uud  the  argument  from  pcissiUe 
abuau  is  just  as  strong  eveu  after  such  a  provision  should  be  made 
as  before.  If  an  ek-otor  were  cunipollablc  U>  go  thirty  or  fifty 
miles,  it  would  discourage  his  vole  as  much  us  if  it  were  one 
hundrvid  or  five  hundred  miles.'  The  truth  is,  that  Congroas 
could  uerer  resort  to  a  measure  of  this  sort  for  purpuses  of  op- 
preasioD  or  party  triumph  until  that  body  had  ceased  to  mprewot 
the  will  of  the  SIjUus  and  the  people;  and  if,  under  such  oiroos* 
Ktaucfs.  till-  uK'uibers  could  still  hold  office,  it  would  be  becanae 
a  gc-nurul  and  irrvmcdiahle  corruption  or  indiffemice  pemded 
tlie  whole  oommunity.  No  republicuu  constitotion  oould  pretend 
to  afford  any  remedy  for  such  a  state  of  thin^* 

§  824.  But  why  did  not  a  similar  objection  occur  agaiost  the 
State  ooQstitiitiunsT  Tbe  subject  of  elections,  tbo  time,  yiaee, 
and  manner  of  holding  them,  is  in  many  cases  left  entirvlj  to 
legislative  discretion.  In  New  York  tbe  seoaSon  are  clioacn  ttnm 
four  districts  of  great  territorial  extent,  each  oomprabandiag 
several  counties;  and  it  is  not  defined  wbere  the  elections  ahtU 
be  had.  8up(ioee  tbe  legislature  should  compel  all  ibe  eUetoit 
to  oome  to  one  spi^  in  the  disinct,  as,  for  instance,  to  Albsn;; 
tbe  evil  would  be  greftt.  but  tbe  ixM«8ure  would  not  be  ' 
tutionaL*  Vet  no  one  practically  entertains  the  aligblest 
of  such  legislation.  In  truth,  all  reamning  from  axiA 
possible  coses  is  ill  adapted  to  convince  tbe  julgnKnt,  thimgh  it 
n»y  alarm  our  prejodioea.     Sacb  a  legiaiatiTe  dtseretiaa  is  aoc 

>  n*  FkdfnUM.  H«  <1.    tW  Ml  1b«»  *t  lU*  r—Mbif  vfll  Mt  b* 
irilktat  ^iwios  »•  ihi  feci  Art,  ibm^  is  S**  Sa^laml  Ihi  natm  . 
(bar  ««tM  te  At  tamtkift  bImn  Acy  wiili.  is  A*  SmAvb  njt  Wb 
tW*  an  iHt  Mmib  wi  Ha  >ttlM—  an  Md  t>  iba  eam^m,  mium  th>  faynlTi—  j 
tfww,  Md  ifWMi  anr  b^  pl—WrtM  4i«rti*.    1  DM'*  CMan^  <S. 

*  ISUtoi^  Detail  SfcSfc  'l^M—llftyfct 


CH.  XI.] 


BLECriOKS. 


601 


deemed  an  infirmity  in  the  delofration  of  conatitational  power. 
It  is  dofitncd  sufo,  Iiccuum.*  it  can  never  Ik  used  uppresHivelj  for 
any  kngth  of  lime,  unlcati  th«  [woplu  thcmsclvcH  chooxv  to  aid 
in  thi-lr  own  dcirradntton. 

§  825.  llic  obji-Ttions,  tlicn,  to  tlio  proviiiioD  are  not  aound  or 
tenable.  The  reasons  iu  its  favor  are,  on  Uie  other  hand,  of  great 
foriN!  and  iRiportance.  In  the  first  place,  th«  power  niny  be  ap- 
plied by  Coiign-»«  to  correct  any  negligence  iu  a  State  in  regard 
to  elections,  a«  well  as  to  prevent  a  dissolution  of  tlic  government 
by  deigning  and  ivfractory  States,  urged  on  by  some  tem[iorary 
excitenieutn.  In  the  m-xt  plact,  It  will  operate  aa  a  check  in 
faror  of  the  i}CopIe  against  any  designs  of  a  federal  Senate  and 
their  const ttiifuts,  to  do|irivc  the  people  of  the  State  of  their 
right  to  choose  representatives.  In  the  nest  place,  it  provides  a 
remedy  for  the  evil,  if  any  State,  by  reason  of  invasion  or  other 
cauKC,  cannot  have  it  in  its  power  to  appoint  a  place  where  the 
citixeiis  can  aafely  meet  to  choose  representatives.'  In  the  last 
place  (as  the  plan  is  but  an  experiment),  it  may  hereafter  be- 
come important,  with  a  view  to  the  regular  operations  of  the 
general  govi>rnment,  that  there  abould  he  a  uniformity  in  the 
time  and  manner  of  electing  representatives  and  senators,  so  as 
to  prerent  vacancies  when  there  may  be  calls  for  extraordinary 
seaaions  of  Congress.  If  such  a  time  nhould  occur,  or  such  a 
uniformity  lie  hei-oafter  desirable.  Congress  is  the  only  body  pofl- 
Beaaing  the  means  to  produce  it* 

§  826,  Such  were  the  objectiong,  and  aueb  was  the  reasoning, 
by  which  tliey  were  met  at  the  time  of  the  adoption  of  the  Con- 
stitution. A  period  of  forty  years  has  since  [taseed  by  without 
aiiy  attempt  bv  Congrpsa  to  make  any  rcgulutiontt,  or  intcrfero 
in  the  slightest  degree  with  the  t-leftions  of  nK-mbcrs  of  Con- 
greaa.  (a)  If,  therefore,  experience  can  demonstrate  anything,  it 
is  the  entire  safety  of  the  imwer  in  Congn-fts,  which  it  Is  scarcely 
poflsible  ^reasoning  from  the  past)  should  be  exerted,  unless  upon 
very  ur^nt  occasions.  The  States  now  regulate  the  time,  the 
place,  and  the  manner  of  elections,  In  a  practical  sense,  exchi' 
sively.     The  ntauner  is  x'cry  various,  and  perhaps  the  power  has 

■  S»  t  ElUot**  Drti.t«,  U.  «T.  M.  4>  :  Id  » ;  Id.  «7. 
«  Tbe  FadanllaU  Ncl  Bl  :  X  EUiafa  DeUto.  S8,  t». 

V")  Rot  Mnoa  tti«M  MMimntBrtM  w«ra     the  ImI  ot  ohkh  i*  ttbnti  to  m  mu  l 
writfn.  it  hM  feew  ikaie  igr  Mrind  M»,     la  |  Hi,  mk. 


602 


COSSTITDTION  OP  THE  DSITED  OTATES.  [0OOK  W. 


]>eea  exerted^  in  some  insUnces,  undvr  Uio  influcooo  of  local  or' 
party  fceliugB,  to  an  extent  which  is  indcfrimibli;  iu  prbiciplc 
tad  policy.     There  in  no  iinifontiity  in  Uic  choice  or  in  tliv  modi 
of  cioction.     Ill  some  t?tal4.'8  the  n>pre»cutativ«8  tire  chosen  by  a' 
general  ticket  for  the  whole  State;  iu  others  they  are  choMo 
singly  in  di»lricts:  in  others  they  are  chosen  in  districts  con 
posed  of  u  population  sufTicient  to  elect  two  or  tliree  represents-^ 
tivcs;  and  in  others  the  districts  are  sometinoes  single,  and 
somotirovs  united  in  the  choice.     Iu  some  fftates  the  oandidat 
must  have  a  majority  of  all  the  rotcn  to  entitle  him  to  be  de 
elected ;  iu  others  (as  it  is  in  England)  it  is  suthcient  if  he  has  i 
plurality  of  votes.     In  nome  of  the  States  the  choice  is  by  the 
voters  piva  foce  (as  it  is  in  Euf^land) ;  (a)  in  othera  it  is  by  ballot' 
The  times  of  the  elections  are  quite  as  rarious ;  sometimes  before, 
and  sometimes  after  the  rvKular  period  at  which  the  oAtoe  b»- 
comes  vncanL     Tliat  this  want  of  uniformity  as  to  the  time  and, 
mode  of  election  has  been  productive  of  some  inconrenit-'ucca  to  < 
public  service  cannot  be  douhtud ;  for  it  has  sumctimee  occnrrcd 
that  at  ao  extra  session  a  whole  Stati'  bus  bL-cu  deprived  of  it 
TOt«^  and  at  the  regular  sessions  somo  dialricts  havu  failed  of  < 
ing  reprettentcd  upon  questions  vital  to  tJieir  interests.     Still, 
strong  has  been  the  seiwe  of  Conpx-ss  of  the  importance  of  leav- 
ing these  matters  to  State  (rt^ulalion,  that  no  effort  has  l>een 
hitherto  made  to  cure  these  oviU;  and  public  opinion  has  al 
irrcflititibly  ttcttled  down  in  favor  of  the  existing  system.' 

§  827.  Several  of  the  Slates,  at  the  lime  of  adoptini;  the  Con- 
stitution, pn^osed  amendincDts  on  this  subject;  but  none  we 
ever  subeetjueutly  proposed  by  Coogress  to  tlie  people,  so  that  the 
public  mind  ultimately  acquie«ocd  iu  tlu)  reasonableness  id 
the  existing  provision.  It  is  remarkable,  however,  that  none  of 
Uie  amendments  pro|)ased  in  the  Stale  conventions  purported  to 
take  away  entirely  the  superintending  power  of  Congress,  but 
only  reatrictcd  it  to  caaes  where  a  State  neglected,  refused,  or 
was  disabled  to  exercise  the  power  of  regiilatin|i  elertious.' 

§  82S.  It  remains  only  to  notice  an  exception  to  the  power  of 
Congress  in  thiii  clause  It  is,  that  Congress  cannot  alter  or 
make  regulations  "as  to  the  place  of  choosing  seoatots."     This 

1  1  TuckfTn  Black.  Ooiiim.  App.  IDS.  *  l-L  191,  m 

*  8m  Jounul  of  ConveniiM,  Suppkmat,  riv  WS.  tit,  tli^  4U,  »S3, 147,  4U. 

(a)  Tb*  KiUior  vtoU  In  1S33. 


CU.  XI.] 


ELBCTIONS. 


608 


^ 


exception  U  highly  reasonable.  The  choice?  ia  to  he  made  hy 
tliv  State  Ic^slatuiT,  and  it  would  not  be  either  neceuarj  or 
bvooming  in  Confrrciu  to  prcscrlbo  the  place  whvro  it  aliould  sit 
This  exvcptiou  vrud  not  in  the  revised  draft  of  the  Const ituticm, 
and  WHS  adopted  almost  at  the  elosc  of  the  convention ;  not,  how- 
ever, without  aoine  opposition,  for  nine  Stutc«  were  in  its  favor, 
01)0  rngKinst  it,  and  one  was  divided.' 

§  829.  The  second  clause  of  the  fourth  section  of  the  fimt  arti- 
cle is  OS  follows:  "The  Congreea  shall  assemble  at  least  once  lu 
every  year;  and  such  meeting  shall  be  on  the  fii-st  Monday  in 
Ueoembor,  unless  they  Khali  by  law  appoint  a  different  day." 
This  clauae,  for  the  first  time,  rande  its  appearance  in  the  revised 
draft  of  the  Oonatitutinn,  netir  the  elose  of  the  convention,  and 
was  silently  adopted,  and,  so  far  a»  can  be  perceived,  without 
opposition.  Annual  parliaments  had  been  long  a  favorite  opin- 
ion and  practice  with  the  people  of  England;  end  in  America, 
under  the  colonial  governments,  they  were  justly  deemed  a  great 
accurity  to  public  liberty.  The  present  provision  could  hardly 
bo  overlooked  by  a  free  people,  jealous  of  their  riphia;  and 
therefore  the  Constitution  fixed  a  constitutional  period  at  which 
Congreas  should  asaemble  in  erery  year,  unless  some  other  day 
was  specially  prescrilied.  Thus  the  legislative  discretion  was 
neoesiiari ly  bounded,  and  annual  sessions  were  placed  equally 
beyond  the  power  of  faction  and  of  party,  of  power  and  of  cor- 
ruption. In  two  of  the  States  a  more  frequent  assemblage  of  tlie 
legislature  was  known  to  exist.  Btit  it  was  obvious  that,  from 
the  nature  of  their  duties  and  the  distance  of  their  abodes,  the 
memliers  of  CoDgresa  ought  not  to  bo  brought  together  at  shorter 
periods,  unless  u|>cn  the  must  pressing  exigencies.  A  provision  so 
universally  uce<-|itable  rerjuircs  no  rlndlcation  or  cominentanp'. * 

§  880.  Under  the  Britisli  constitution  the  king  has  the  sole 
right  to  convene  and  [>rori>gue  and  dissolve  Parlisnicnt,  And 
althongli  ii  is  now  usual  for  Parliament  to  assemble  annually, 
tile  power  of  prorogation  may  be  applied  at  the  king's  pleasure, 
so  as  to  prevent  any  bnsincM  from  lieing  done.  And  it  is  usual 
for  the  king,  when  he  means  that  Parliament  should  assemble  to 
do  busineaa,  to  give  notice  by  proclamation  accordingly;  other- 
wise a  prorogation  is  of  course,  on  the  hnit  day  of  the  session.' 

<  jAvrnal  of  ConreoUoii.  85t,  3*1.  *  The  Ftelnmliit,  Ho.  S3. 

•  llIlMik.CMiiii.UT,  lSS,UKlUiiMtuaaK«tai  S  Wiboa'cLmrLMt.  IM.  lU. 


604 


C0N8T1TLTI0S  OF  THK  UXITEO  STATES.  [bOOE  TIL 


J  831,  The  fifth  section  of  the  first  artirle  embraces  proTisions 
principal)}-  applicable  to  the  powem,  rights,  and  duties  of  each 
hoime  in  its  Sfparato  corporate  c]isracter.  These  will  not  retjuiro 
much  illustration  or  commontary,  as  tlicy  are  such  as  are  tisually 
delegated  to  all  lei^islativc  bodies  in  free  guTemoiPots,  and  were 
in  practice  in  Great  Britain  at  the  time  of  the  emif^ration  of 
our  ancestunt,  and  were  vxercisrd  under  the  colonial  govern- 
ments, and  have  been  secured  and  recuguixed  in  tlie  present 
State  constitutions. 

§  832.  Tlie  first  clause  dcelarn  that  ''each  huuse  shall  be  the 
judge  of  the  elections,  returns,  and  qiuiHficatioiis  of  its  own 
members,  (a)  aiid  a  majority  of  each  shall  constitute  a  iiuoruin  to 
do  business;  but  a  smaller  number  maj-  ndjoitm  from  day  t<j  day, 
and  may  be  authorized  to  eoni|)e)  tlie  attendance  of  alt^nt  mem- 
bers,  (£)  in  such  manner  and  under  such  penalties  as  each  house 
may  provide. "  '  (c) 

§  633.  It  is  obvious  tliat  a  power  must  be  lodged  somewhere 
to  jud^  of  the  elections,  returns,  and  qualifications  of  the  mem^ 
bora  of  each  house  composing;  iho  legislature ;  for  othcrBiae  there 
could  be  no  ccrtaiuty  as  to  who  were  legitimately  chosen  mem- 
bers, and  any  intruder  or  usurper  might  claim  a  seat,  and  thus  ] 
trample  uiwn  the  rights  and  privileges  and  liberties  of  thepeo-^ 
plo.  Indwd,  elections  would  become,  under  such  circumstances, 
a  mere  mockery,  and  legislation  tlio  exereiss  of  soiTreignty  by 
uny  stOf -const! tutt'd  body.  Tlic  only  posaiblu  question  on  sui-h  a 
subject  is  as  to  the  body  in  which  such  a  power  shall  bo  lodged. 
If  lodged  io  any  other  than  tbe  legislative  body  itself,  its  inde- 
pendence, its  purity,  and  even  its  existence  and  action  may  be 
destroyed  or  put  into  imminent  daugi>r.  No  other  body  but  It- 
self can  have  the  same  motives  to  preserve  and  perpetuate  tbe«e 
attributes;  no  other  body  can  bo  so  perpetually  watchful  to 
guard  its  own  rights  and  privileges  from  infringement,  to  purify 
and  vindicate  its  own  cliaracter,  and  to  preserve  the  rigbta  and 

1  Sm  tiwHew  Jtmry  Elnct)an>riMlS41-ISU,  wlwrellie  bcmw  rer»al  tbe  gcrtra- 
ofi  certificate  of  oleetim  lUidcr  the  Sul«  sal  u  ^nmii  fittit  eriiknes  cf  doetion,  uiil 
llie  rabnqnent  proeanli^ip. 


(a)  Sw  Kilboon  *.  TIiomfaDn,  103 
IT.  S.  Its. 

((j  So,  wilhin  limit*  of  jqiiKlktioM, 
«r  comprltinic  RttaidwMo  of  writMBH^ 
■lid  paiiithiiig  Uwn  far«mltiii{^    Kit- 


bourn  r.  Tbompwni,  lupn.    A*  to  ilw 
liullt  of  JnriMticlioD  Me  Ibet  CMe. 

(f|  (juitKjt  UenMir  uTJobn  Qaincjrj 
Aiam,  SDS. 


CIl.  M.] 


BLECnONS. 


006 


HUKtain  th«  froo  choice  of  its  constitucnlA.  Accordingly,  llio 
powiT  li«8  alirnvB  been  lodged  in  the  legtBlAtire  body  hj  tbc  uni- 
fonn  practice  of  Knglnnd  and  America.' 

§  ma.  Hie  propriety  of  catablinhing  a  nile  for  a  quorum  for 
the  despatch  of  bunineBs  in  equally  clear,  Hince  otherwise  the 
ooncemn  of  the  nation  might  be  decided  by  a  very  small  number 
of  the  ntemliers  of  each  body.  In  Eofflaiid,  where  the  Elouite  of 
Commoiifi  consists  of  nearly  six  hundred  mombera,  the  number 
tA  forty-fire  conatltutes  a  quorum  to  do  businesn.'  In  some  of 
the  State  conBtitutions  a  particular  numlwr  of  the  members  con- 
Btitutcfi  a  quorum  to  do  biutluL'ss ;  in  otbcni  a  majority  is  rcquin^l. 
The  Conatitution  of  tlio  United  States  lias  wisely  adopted  the 
latter  cuurHc;  and  thus,  by  requiring  a  majority  for  a  quorum, 
has  secured  the  public  fn>in  any  liaitard  of  passing  laws  by  sur- 
prise, or  aininst  the  deliberate  opinion  of  a  majority  of  the 
rcprcseututivv  body. 

§  835,  It  may  aeem  strange^  but  it  is  only  one  of  many  proofs 
of  the  extreme  jealousy  with  which  every  provision  in  the  Con- 
stitution of  the  United  tStates  was  watched  and  scanned,  that 
though  the  ordinary  qnonim  in  the  State  legislatures  is  sume- 
times  leas,  and  rarely  more,  than  a  majority,  yet  it  was  said  that 
!n  the  Congress  of  tlie  United  States  more  tliau  a  majority  ought 
to  ha\-e  been  required;  and  in  particular  cases,  if  not  in  all, 
more  than  a  majority  of  a  quorum  should  bo  necessary  for  a  de- 
cision. Traces  of  this  opinion,  though  very  obscure,  may  per- 
haps bo  found  in  the  convention  itself.'  To  re(|uirc  such  an 
extraordinary  quorum  for  the  decision  of  questions  would,  in 
efTect,  be  to  give  the  rule  to  the  minority  instead  of  U>e  majority, 
and  thus  to  subvert  tlie  fundamental  principle  of  a  republican 
government  If  such  a  courcto  wt>re  generally  allowed,  it  might 
be  extremely  prejudicial  to  the  public  interest  in  casefl  which 
required  new  laws  to  be  passed,  or  old  ones  modiBed,  to  prc«erve 

■  1  Bbck.  Comm.  1«S.  17^  ITS;  Rav1«  od  ttw  CoiutitvtiiM,  eb.  4.  p^M;  1  TUtkt, 
ConiH.  S30  1  S  Wilwn  *  Law  UcL  1&3,  151. 

*  1  Tuck«t*>  tilKk.  Coma.  App.  201,  9»;  MS,  ««.  1  Iwn  not  bsu  aU*  to  nnd. 
in  RBjr  Vaak»  wiiliin  m^  n«ch,  wlM4htf  uiy  iwrtkttlar  qnonm  U  n^ Bind  la  ths  H««m 
(•r  LonU  m) 

•  The  ftAtnOtt,  So.  K ;  Joimial  of  Coavnitkiii,  21S.  MS. 


(a)  ThiM  le«4i  fooatJint*  ■  iwoniB  ; 
S  Englbli  Saiut,  183«.  p^  2«l,  MS  ; 
CMpvc**  LMtre*  mt  la  CbaaMUnic^  Uu 


tor  IS,  ^  1S4 ;  Vwiwra'*  pTMtie*  oT 
Hooa*  of  Larit,  p.  IV. 


606 


CONSTITOTION  OP  TUB  ONtTKD  BTATEft.  [BOOK  HI. 


the  gen«ra],  in  contradistinction  to  local  or  special  interests. 
If  it  were  even  confmixl  to  inariicular  caaes,  Itie  pririle^  inipht 
enable  nti  interested  minority  to  screen  thenutelven  from  equita* 
bic  sacrifices  to  the  general  weal,  or,  in  particular  casea,  to  ex- 
tort iindiio  induli^nm-8.  It  would  also  have  a  tcuduncy  to  fottter 
and  facilitate  the  baneful  prsctieo  of  scix-Mion,  a  pructicu  which 
has  shown  itself  even  in  States  where  a  majority  only  U  required, 
which  is  subversive  of  nil  the  principles  of  order  aiid  re^tlor 
govcrniucnt,  and  which  leads  directly  to  public  convulsions  toAn 
the  niin  of  republican  institutions.' 

g  HHt>,  iiut  as  a  danger  of  an  opposit«  sort  required  equally 
to  be  guarded  against,  a  smaller  number  is  autboriKed  to  adjourn 
from  day  to  day,  thus  to  prevent  a  legal  dis»olutioR  at  the  body, 
and  a]»o  to  coni]M>l  tlie  attendance  of  alKiCDt  members.^  Thua, 
the  intereata  of  the  nation  and  the  despatch  of  busineaa  are  not 
subject  to  the  caprice  or  perversity  or  negligence  of  tlte  minority. 
It  was  a  defect  in  the  articles  of  ccmfederatioo,  sometimes  pro- 
ductive of  great  public  mischief,  that  no  vote,  except  for  an  ad- 
journment, could  he  determined,  unlcsa  by  the  votea  of  a  inajorify 
of  the  Hlates;^  and  no  power  of  compelling  the  atteadmco  of  the 
requisite  number  existed. 

•  Thr  FtdonlUt,  Hot,  23.  SS. 

■- Jounul  or  CaaivntioD,  21 S.  2it ;  t  IiuRlt.  4S,  49. 

■  OMrcdenlion,  art. » ;  1  FJlMfl  DttetM,  41,  4S  i  Ttw  Ftdmllrt,  Ho.  SL 


CB.  XII.] 


PKlriLBOU  OP  COKOBSBB. 


80T 


CHAPTER  XIL 


FBITTLEGIS;   AKD  POIVIXS  OP  BOTH    ttOVStH  OP  COXOREBA. 


§  887.  Tub  next  clause  is,  "Ench  honso  may  (Ivtcrminc  Uio 
rulea  of  it«  pracocdings,  puiiiith  its  mvmlxsra  for  disorderly  be- 
havior, and,  with  the  concurrence  of  two-thirdn,  exiwl  a  UR^m- 
bcr,"  No  pereon  can  doubt  the  propriety  of  tiio  proviiiiijn 
authorizing  each  hoiwe  to  det*nnino  th«  nilea  of  its  own  pro- 
C4>p<!infr».  If  the  p-iwer  did  not  exist,  it  would  be  Htt«rly  im- 
pnicticublv  to  transact  the  buiiinp^s  of  tlie  nation,  cither  at  all, 
or  at  least  with  decency,  deliberation,  and  order.  The  hum* 
bleat  aa)u>mbly  of  men  is  umlorstood  to  posHCHs  thia  power,  and 
it  would  be  absurd  to  deprive  the  councils  of  the  nation  of  a 
like  authority.  But  the  power  to  make  rules  wonld  be  nutnitory, 
unless  it  was  coupled  with  a  power  to  punish  for  dlEordcrly  be- 
havior or  disobedience  to  those  rutes.  And  as  a  mt^mbcr  mij^ 
be  so  loflt  to  all  sense  of  dignity  aiid  duty  as  to  disgrace  the  houso 
by  the  gnxutncss  of  his  conduct,  or  interrupt  its  deliberations  by 
pcr|)c(ual  violence  or  clamor,  the  power  lo  expel  for  very  a^igra- 
vatcd  misconduct  was  also  indispensable,  not  as  a  coniuioii,  but 
aa  an  ultimate  redress  for  the  gricvunee.  Bui  such  a  power,  so 
summary,  and  at  the  same  time  so  subversive  of  flie  rig^lits  of 
the  people,  it  was  fon-sM-n,  miglit  be  exerted  for  mere  purposes 
of  faction  or  party,  to  remove  a  patriot  or  to  aid  a  corrupt  meas* 
urc;  and  it  has  therefore  been  wisely  gimrded  by  the  restriction, 
that  there  shall  be  a  concurrence  of  twothiiiis  of  tlie  mcmlwrs 
to  justify  an  expulsion.'  This  clause,  requiring  a  concurrence 
of  two-thirds,  was  not  in  the  ori|final  draft  of  the  C'nnstitution, 
%it  it  was  inserted  by  a  vote  of  t<'n  Statea,  one  hein^  divided.* 
A  like  ^neral  authority  to  expel  exists  in  the  British  Iloiiae  of 
Commons,  and  in  the  legialatire  bodies  of  many  of  the  ^tatea 
composing  the  Union. 

S  8S8.    What  must  be  tlie  disorderly  behavior  which  the  house 

■  Kr.  J,  Q.  A'lunu't  BcpoTt  l«tk*  Srau*  la  tha  cbm  of  Jolm  Smith.  91  Dee.  ISOT  ; 
1  HaU**  Uv  Jmmi.  4SS  ;  fleiignnl  m  OmwL  Uw.  (k.  98,  pp.  «7,  SSS. 

■  Jvoraal  «4  CmiTciitioii,  118,  StS. 


608 


CONSTITBTIOX  Of  THE  intrTBD  STATES.  [bOOI  IU. 


may  puniah,  and  what  puniahmcnt}  other  than  expulsion,  tnaj 
be  inflicted,  do  not  appear  to  have  been  settled  hy  any  ant 
itativc  adjudicutiun  of  either   hoiiM;   of  Congress.      A    loamed 
commcntatur  suppuHUt  that  iticmberB  can  only  be  puuiahed  fur 
misbehavior  committed  during  llie  session  of  Congroea,  cither 
u-lthin  or  vriUiwit  the  walls  of  the  house,  though  he  is  also 
opinion  thnt  expiiUion  may  be  inflicted   for  criminal   conduct^ 
committed  in  any  place.'     He  doea  not  Bay  whetlier  it  must  be 
committed  during  the  sesAion  of  Congress  or  otherwise.      In 
July,   1797,   William  Ulonnt  waa  expelled  from  the  Senate  for 
"a  high  niifldemeanor,  entirety  inconsistent  with  his  public  Intst 
and  duty  as  a  ttenator."     The  offence  charged  against  him  was 
an  attempt  to  aeduce  an  American  atr^nt  among  the  Indians 
hia  duty,   and   to  alienate  the  a0cetiona  and  confidence  of  tlM^ 
Indians  from  the  public  authorities  of  the  United  States,  and  a 
negotiation  for  services  in  l>ehalf  of  the  British  govemmenfe. 
among  the  Indians.     It  was  not  a  statutable  offenee,  nor  was  ibi 
committed  in  his  ofTicisI  character;  nor  was  it  committed  during 
the  setwion  of  ConKm-ss,  nor  at  the  seat  of  government.     Yet,  by. 
an  altiioHt  unimimous  vote*  he  was  expelh^d  fmra  that  liody;  and 
he  was  afterwards  impeached  (as  has  been  already  stated)  for 
this,  among  other  charges.'  (a)     It  seems,  therefore,  to  be  settled 
by  the  JH-uatc,  upon  full  deliberation,  that  expulsion  may  be 
for  any  misdemeanor  which,  though  not  punishable  by  any  stat- 
ute, is  inconsistent  with  the  tnist  and  duly  of  a  senator.     In  tbsi 
case  of  John  8niilh  (a  senator),  in  April,  1808,  the  chai|;e' 
against  him  was  for  participation  in  the  supposed  treasonsblQ 
oonspimcy  of  Colonel  Burr.     But  the  motion  to  expel  him  wasj 
lost  by  a  want  of  the  constitutional  majority  of  two*thirds 
themembersof  the  f?enat&*    The  precise  ground  of  the  failnn) 
of  the  motion  docs  not  api>ear;  but  it  may  be  gathered  from  the 
arguments  of  his  counsel,  that  it  did  not  turn  upon  any  doabtj 
that  tlic  power  of  the  Senate  extended  to  cases  of  misde 
not  done  in  lh«  prcseoco  or  view  of  the  body;  but  most  probably 

>  BawU  on  th«  Coiudtution.  A.  t.  p.  47.  ■  Yew  S5,  naj- 1. 

•See  iomud  oT  Snub,  8  Julf,  17»7:  SopHfi  Const  liiw,  eh.  IS,  p.  tH ;  1 
B«ir*  U«  Jomi.  4S9,  471. 
«  Y««  IP,  n»T%  10. 

(o)  MiRhl,lSin.ttM6eute«ip(n«dkni*iul>Hr«riU((edti«woiuUci 
■noc  «riiti  the  emnnjr. 


OH.  Xtt.] 


PRITTLEGB8  OF   COKGSK^a. 


eoo 


it  wiut  dooidod  upon  some  dottbt  ns  to  the  fsct«.'  (a)  U  niaj  \te 
thought  difficult  to  draw  a  cloar  line  nf  distinction  between  th« 
right  to  inflict  the  punisliment  of  ex{>ut»inn  and  anj  other  piin- 
inhmont  upon  a  niemlier,  founded  on  tlie  timp,  plan;,  or  nature 
(rf  the  ofifcnw,  'n»e  power  to  expel  a  menitwr  is  not,  in  the  Brit- 
ish House  of  Comroono,  confined  to  ofTonuea  committed  by  the 
pnrlv  as  a  mvinbc-r,  or  during  the  acssicH)  of  Parliament;  but  it 
extends  to  nil  cjiscs  where  the  offence  is  such  as,  in  the  judg- 
ment of  the  house,  unfits  him  for  parliamentary  duties.  '  {i) 

§  839.  The  next  clause  is,  "Each  house  shall  keep  a  journal 
of  it8  proceedings,  and  from  time  to  time  publish  the  same,  ex- 
cept sueb  parts  as  tim)-  in  their  judgment  require  sccrccj.  And 
tbeyeas  and  nays  of  tJie  mombor«  of  eiOier  lioum:-  on  ifny  ques- 
tion ahall,  at  the  deaii-e  of  onc-Gfth  of  these  present,  be  entered 
tm  the  journal. "  (c) 

■  I  HaU'*  Law  Jonm.  iS»,  4(1  ;  Joun.  of  SfMta,  9  April,  I80B ;  Sirxiut'iCoiiA 
Liir,  ch.  SH,  pft.  S$J,  SS4.  gMaWprocMilin^Dr  lh«  AfiiMoiB  thccMtpf  Huin|<1inr 
MsntuJI,  23  Miitk,  17H ;  8«4fHnt'»  Conat.  Law,  oh.  18,  p.  »5. 

■  1  Btwk.  Comm.  1«S.  and  Chriitua'i  NdI«  ;  Id.  107  mil  note.  S*w  iIm  Sex  v, 
Tillto.  2  Wilwn'*  K.  2A1 ;  Com.  Dig.  Piarliaiiunt,  G.  L    8co  1  Ball'*  Un  Jonm. 


I 


{«)  8m  Uw  |ico«ndl)i|pi  In  Houitoit't 
(Mr,  Bnnton'i  AMlgnent  of  D*fc*ta^ 
Vol.  S,  p.  flS8. 

lb\  8m  Cuihing,  L»  and  Pnctice  of 
Lcgiiladve  ABomblJa^  {}  94,  IH.  Sc- 
Mntlj  ■  mrmbiT  wa*  aipalM  (br  liaviiiK 
nMtvwl  iiiun''y  fnim  iboM  he  had  rvcom- 
ntMidrd  lo  Uic  I'rwultat  for  appoinlaMnl 
tocAca. 

(()  ThU  elanae  wm  modi  NlltJ  upon 
wlinn,  ill  IS3",  B  nwolnllnn  to  oxpn^t* 
from  the  journal  uf  the  Scnatu  a  pivTiiiiia 
Raolation  of  Mninre  upon  Preaidenl  Jxk- 
«iM  WM  nndrr  dxtfamati.  Mr.  Wehafor, 
ani»n|[  oUiun.  •Iron)(t]r  iniutail  IhM  tho 
■Otiun  prapoaeil  wniiM  fca  a  Btnifrat 
Tiolalian  of  tliia  imltumpiit  Wvbtut'* 
Wottu.  IV.  Ml  Ana  Ks  Clay'i  Worki, 
VI.  4S.  Th*  »pp°*'<'  ****  *"  tottOAf 
prMMttd  bf  Mr.  Bratnn.  Thirty  Vaara 
In  the  Swat*,  I.  TIT.  For  anwe  iMlem  at 
tbt  Hnal  dchaU.  m  Ibid.  737.  AaAUxm 
M>T«  Mm(JHe  ■briitpnaiit  of  it,  •««  Ban* 
toa't  Ahriilf^niaiit  of  D«Utn,  Vo).  11  A 
VOL.  1.-89 


dmClar  Jutanee  of  aa  cxpUBRfns  main- 
tloD  (KVtin  In  Ihn  hlnlor;  or  !tlMwhatrita. 
In  1813  H  tule  of  thanlit  Ii>  CHpuln  Law- 
rence for  the  «[itiire  ol  the  Penooek 
Doming  np  in  the  Stale  Knaie,  Ur.  Jodaii 
Qiiliicy  olfurvd  hu  o(l*t«atod  iwIutioD, 
which  waa  adoplfd  :  "  Kaolad,  That  in  a 
war  like  the  pnwnl.  waff^l  "Hhoiit  juati- 
Aabta  caiu*,  aad  pro««nttd  in  t  mannar 
iMlieatiaff  tlial  mnqncat  and  a»bitioQ  ar« 
It*  real  nudvtisit  UDOtbeMnunganioral 
atnl  rrl^loua  ptopla  to  exfireu  any  appro, 
batian  of  milllaiy  vbA  aaral  ti|i1oSl)  not 
{Bmedklely  connsrlFd  with  tb«  ilefenoe 
of  our  aM.«aMt  and  aoU."  In  IB3t,  when 
tb«  OfrpodBg  |*rty  had  oUalacd  control 
of  the  Stati>,  thia  iMnlntton,  by  a  patty 
rota,  waa  enlcrrd  to  bt  eratfd  (hMn  tb* 
jonraalof  theamale.  Lifeef JoalahQuin- 
cy,  39i.  Olhar  pnxedrnti  will  W  fi>n»d 
rtferred  to  tn  the  Can«trwiJM>al  Debstt* 
La  1887.  8m  ibal  la  WUkaifa  Cai^  7 
Hahan'a  Eo^d,  188.    C. 


610 


CON3TITCT10K   OP  THE  trKITKD  BTATES.  [BOOK  m. 


§  840.  ThU  clause  in  tt«  actual  form  did  act  pCiM  In  Uie  coo- 
veniion  wiihout  some  stniggle  nnd  eotite  propoaitioiu  of  uncnd- 
m«nl.  Tht>  tiriil  pnrt  finally  passed  hf  a  unaiiinioug  vote;  Uie 
exception  was  carried  byaclnse  rote  of  eix  StAles  agaiiint  four, 
OIK  being  divided ;  and  the  remaining  claiiae,  nfter  an  iucffe<:tual 
effort  to  strike  out  "one-fifth,"  and  insert  in  its  Htead  "ifei-ery 
memlier  present. "  n-as  linally  adopted  by  aiinanimoua  vot«.'  The 
object  of  the  whole  clause  ia  to  insure  pnblicity  to  the  proceedingg 
of  t]io  le^slatui-e,  and  a  eorrcapondent  reBponsibilil^  of  tlie  mem- 
bora  to  their  respective  coDBtitucnts.  And  it  is  founded  in  sound, 
policy  and  deep  political  foresight  Intrigue  and  cabal  are  chi 
deprived  of  some  of  their  main  resources,  by  plotting  and  dtnis* 
injf  meaauroa  in  aotrccy.'  The  public  mind  is  enliphtcned  by  en 
attentive  examination  of  the  public  measures;  imlriutiuu  and  in- 
tegrity and  wisdom  obtain  their  due  reward ;  and  votes  are  ascer- 
tained, nut  by  vui^uc  ounjecturc,  but  by  positive  facts.  Mr. 
Justice  Blackslunc  seems,  indeed,  to  aupjMMti  that  votea  openly 
and  publicly  given  are  more  liable  to  intrigue  and  combination 
than  thuHC  )civon  privately  and  by  ballot.  "This  latter  method," 
Days  he,  ^may  bo  ser%'ioc«ble  to  prevent  intrigues  and  uncon- 
stitutional combinalions.  But  it  is  impossiblo  to  be  practised 
with  118,  at  lea!*!  in  rhe  Hou»c  of  Commons,  where  ever>-  member's 
conduct  is  subjoct  to  tho  future  censure  of  his  eonstituenta,  and 
therefore  should  be  openly  submitted  to  their  inspection."' 

§  841.  The  history  of  public  assemblies  or  of  private  vote*) 
dm-s  not  seem  to  confirm  the  former  suggestion  of  the  learned 
author.  Intrigue  and  combination  are  more  commonly  fncmd 
coniiccf*d  with  secret  sessions  than  with  public  delmtea;  with 
the  workings  of  tho  ballot-box  than  with  the  manliness  of  mm 
voce  votes.  At  least,  it  may  be  questioned  if  the  vote  by  Imllot 
has,  in  the  opinion  of  a  majority  of  the  American  people,  obtained 
any  decisive  preference  over  riva  vo^e  voting,  even  at  elections. 
The  practice  in  New  England  is  one  way,  and  in  some  of  ihe 
States  in  tlie  South  and  West  another  way.  (a)    And  as  to  the 

'  Jnonul  <ft  lb-  Canmitioii.  pp.  21»,  S13.  2*4.  245.  JSi,  573. 

■  1  TiKlitTi  Btack.  Cdmm.  Ap|i.  lOt,  2i» ;  3  WUwu't  iAd.  197.  15$. 

•  1  BUck.  CoiiuD.  181, 182. 

<«)  Tortngbybaltot  hni>wMatl)riial.  EdkUikI  vm  (^TnM  ia  1873.  Be*  X«w 
nn*l  In  tb«  Daitol  Sum,  vurft  in  W-  AoMrkan  Cretafwdii.  «iL  ISTS,  an. 
^datita  btdlM,  aiut  iu  iatradnetiaii  into     "  BaUoL' 


I 


CR.  Xtl.} 


PBIVILGOES  OP  C0NGKE8B. 


611 


votes  of  rcpresentati^x>a  and  sonatore  in  Coofcrcsa,  no  man  hus  yet 
been  bold  enoufrb  to  vindicaUi  a  soorot  or  ballot  vote,  as  «ithor 
moiv  itiifc  or  more  wtsf,  mure  promotive  of  iudcpcndc-nco  in  the 
members,  or  muru  beneficial  to  thi'ir  couMtituvtit^  So  long^  aa 
known  and  open  reaponaibility  is  valuable  as  a  cb<!ck  or  an  in< 
centive  amonif  the  representatives  of  a  free  people,  an  Imii!  a 
journal  of  their  proccodinpi  and  their  votes,  pabliahed  in  tlie 
face  of  the  world,  will  continue  to  enjoy  public  favor  and  l>e  de- 
manded by  public  opinion.  When  (lie  people  become  indilTcrent 
to  the  acts  of  their  reprcaeututives,  thcv  will  have  ceatted  to  take 
much  intereat  in  tlic  preservntiuu  of  Oicir  liberties.  When  the 
journals  shail  excite  no  public  hitereat,  it  will  not  bo  matter  of 
surprise  if  the  Cooatitution  itself  is  silently  forgotten  or  delib- 
erately violuted. 

I  842.  The  restriction  of  calls  of  the  yeas  and  nays  to  one-fifth 
is  founded  u|Km  the  necessity  of  preventini?  (-jo  frequent  a  recur- 
rence to  tliis  mode  of  ascertaininf;  the  votes  at  tlie  mere  caprice 
of  an  individual.  A  call  oonsmiies  a  Kivat  denl  of  time,  and 
ofte'»  embarraas^'S  the  just  progress  of  beneficial  measures.  It 
is  said  tu  have  been  uflc-u  used  to  excess  in  tlie  Congress  under 
the  confederation,'  and  even  imder  ll>c  present  CunstitntiiHi  it  is 
notoriotialy  used  ta  un  oceiiaiunul  annuytinco,  by  a  dissatisfied 
minority,  to  retard  the  ])a8auKe  of  meiiaurus  which  are  sanctioned 
by  the  approbation  of  a  strong  majority.  The  clieek,  tlierefoto, 
is  nut  merely  theoretical ;  and  experience  shows  that  it  has  licen 
rcsortod  to,  at  once  to  admonish  and  to  control  memlMTS  in  this 
abuse  of  the  public  patience  and  the  |>ublic  indulgence. 

§  848.  The  next  clause  Is,  "  Neither  house,  during  the  itession 
of  Congress,  shall,  without  the  consent  of  the  other,  adjourn  for 
more  tlian  throe  days,  nor  to  any  other  place  than  that  in  which 
the  two  houses  shall  Iw  sitting."'  It  la  observable  that  the 
duration  of  encli  session  of  Congress  (subject  to  the  eonatitu- 
tional  termination  of  their  official  agency)  depends  solely  upon 
their  own  will  and  pleasure,  with  the  single  exception,  as  will  be 
presently  (teen,  of  cases  in  which  the  two  houses  disagree  in  re- 
apert  to  the  time  of  adjournment.  In  no  other  ease  is  the  Pres- 
ident allowed  to  interfere  with  the  time  and  extent  of  their 
deliberations.    And  thus  their  independcnec  is  effectually  guarded 

>  1  ToiJc.  nUek.  CMBn.  App  SOS,  30<L 

■  Smi  Jovm.  of  (TeoTMitka,  S19,  SH.    Sm  iIm  3  EUlot'*  DcfailM,  STe,  VI. 


612 


CONSTTTCTIOH  Or  TBE   DKITGD  STATES.  [BOOK  Dt. 


^ainat  any  encroachmont  on  the  part  of  the  executive.'  Very 
different  ia  the  sitoatiun  of  Parliament  under  the  British  couiti- 
tiition:  for  tho  kiti)^  mu}-,  at  any  time,  put  an  vu<]  to  a  iK-ssiun  by 
a  i>rorogation  of  Parliamvnl,  or  terminate  iht'  fxistencc  of  Tar- 
liament  by  a  dissolution  and  a  call  of  a  acw  Parliamcat  It  b 
true,  tliat  oac-h  houtM,-  Itas  authority  to  ndjoum  itxelf  acpAratcly, 
and  tlii»  is  uooiniuuly  done  from  day  to  day,  and  sometimes  for 
a  w(Hik  or  a  month  together,  as  at  Christmas  end  Easter,  or  upon 
other  |>art)cular  occasions.  Itiit  the  adjournment  of  one  hoiis« 
is  not  tho  adjoiimment  of  the  otlier.  And  it  is  usual,  nhen  the 
kinjr  signifies  his  pleasure,  that  both,  or  either  of  tlic  houses 
should  adjourn  themselves  to  a  certain  day,  to  obey  tlio  king's 
pleasure,  and  adjourn  accordingly,  for  otherwise  a  prorogottou 
would  certainly  follow.* 

§  844.  Under  tlie  coloitial  governments,  the  undue  exercise  of 
the  same  i>ower  by  the  royal  governors  constituted  a  irreat  pul»- 
lic  gi-ievancc,  and  was  one  of  the  Dumeraua  cases  of  misrule  u|ioa 
which  the  Declaration  of  Independence  strenuously  relied.  It 
wan  there  solemnly  charged  against  the  king,  that  ho  had  called 
together  legislaliye  (colonial)  bodies  at  places  unmual,  uncom- 
fortable,  and  distant  from  the  repository  of  the  public  records; 
that  he  had  diiwolved  representative  Itodiea  for  opposing  his  in* 
rasiona  of  the  rights  of  the  people,  and  after  Ruch  dissolutions  be 
had  refused  to  reassemble  them  for  a  long  period  of  time,  ft 
wan  natural,  therefore,  that  the  people  of  the  United  States 
should  entertain  a  strong  jealousy  on  this  subject,  and  should 
interpose  a  constitutional  barrier  against  any  such  abuse  by  the 
preropative  of  the  executive.  The  8tato  constitutions  generally 
contain  some  provision  on  tho  same  subject  as  u  security  to 
independence  of  the  legislature 

§  845.  Thi-se  are  all  tho  powers  and  privileges  whieh  are  ex< 
pressly  vested  in  each  house  of  Congress  by  the  ConstitutioiLj 
What  further  {wwers  and  privil«^(cs  they  incidentully 
has  been  a  question  niueh  discussed,  and  may  hereafter  bo  open, 
as  new  cases  arise,  to  still  further  discussion.  U  is  remarkatde 
that  no  )>ower  is  conferred  to  puuiflh  for  any  contempts  com- 
mitted Against  either  house,  and  yet  it  is  obvious  that  unless  such 

>  t  TttdMt'*  Bladi.  C<aiun.  A^  M«,  SOT. 

*  I  Black.  Ccunn.  IS*  to  190  ;  S  VUmo^  U«  Lmt.  Ut,  ItS :  Cdcd.  Dig.  p^li». 
mini,  L  H.  K.  0.  P. 


PBIVILEGeS  OP  CONGIEESS. 


613 


a  power,  to  Bome  extent,  exista  by  implication,  it  is  ntterly  im- 
possiblo  for  either  house  to  perform  ita  cuDstitiitional  functions^ 
For  iiiBtun<.-(.-,  how  is  vithc-r  housv  to  oooduct  ita  own  deliberations 
if  it  muy  not  keep  out  or  expel  intruders  ?  If  it  may  not  require 
and  enforce  upon  etranf^'rs  silence  and  decorum  in  its  presence  t 
If  It  may  not  cnuble  its  onm  members  to  have  free  iii)rr<^«s,  egress, 
and  rcirress  to  its  own  hall  of  Icffislatiou  ?  And  if  the  power 
exists,  by  implication,  to  r«<)u{rc  the  duty,  it  is  wholly  nu^lory, 
unless  it  draws  after  it  tbc  incidental  authority  to  eomjM^l  obedi- 
ence and  to  pimish  violations  of  it.  Ithas  heensugge«»ted  by  a 
learned  commentator,  quoting  the  Inngiuige  of  Lord  Ilacon,'  that, 
OS  Qxccptiun  strenjithens  the  force  of  n  law  in  cases  not  excepted, 
BO  enumeration  weakens  it  in  c««a  not  enumerated,  and  hence  he 
deduces  the  conclusion  that,  as  the  power  to  punish  contempts  is 
not  among  those  enumerated  as  belonging  to  either  bouse,  it 
does  not  cxiBt,'  Now,  however  wise  or  correct  the  ninxim  of 
Loni  Bacon  is  in  a  general  sense,  as  a  means  of  interpretiition  it 
ll  not  the  solo  rule.  It  ia  no  more  true  than  another  miixtm  of 
ft  directly  opposite  character,  that  where  the  end  is  rctjuired  the 
means  are,  by  implication.  Riven.  ConRTcaa  are  reciuircd  to 
exerciae  the  powera  of  legislation  and  deliberation.  The  safety 
of  the  rights  of  the  nation  nr<iuirea  this;  and  yet,  bceause  it  is 
not  espresBly  aaid  that  Contrnras  shall  potuesa  the  appropriate 
means  to  accomplish  this  end,  the  mejiiut  are  denied  and  the  end 
may  be  defeatctL  Does  not  this  show  that  niU-s  of  interpreta- 
tion, however  correct  in  a  general  sense,  must  admit  of  many 
qualilicationa  and  modifications  in  their  application  to  the  actual 
business  of  human  Itfe  and  human  laws  ?  Hen  do  not  frame 
constitutions  of  government  to  suspend  its  viul  interests  and 
[lowers  and  diiliea  njmn  melaphyaical  doultts  or  ingenious  refine- 
menta.  Such  instruments  must  bo  construed  reasonably  and 
fairly,  according  to  the  scope  of  their  par}KMos.  and  to  give  them 
effect  and  operation,  not  to  cripple  and  destroy  them.  They 
must  be  constnked  according  to  the  common  seniie  apgdicd  to  in- 
tnimenla  of  a  like  nature,,  and  in  furtherance  of  the  fundamen- 
tal objects  propo«ed  to  bo  attained,  and  according  to  the  known 
practice  and  incidents  of  bodies  of  a  like  natnre; 
§  846.    We  may  resort  to  the  common  law  to  aid  na  in  Inter- 

1  Advuetiiwnt  ot  lyarnLoj; ;  I  Tuok.  BlMk.  App.  tHO,  not*. 
*  1  l^ckM*!  Bbck.  300. 


614 


coKSTmrrioN  of  trb  tnoTED  stxtes.         [book  m. 


preting  such  instruments  and  tlieir  pow-ura,  for  that  Ihw  is  the 
common  rule  b;  whicli  all  oiir  legislation  is  int«r)trcte<L  It  i» 
known  and  acted  upon  and  rcvered  liy  the  people.  It  furnmiw<« 
priuoiples  e<|ually  for  civil  and  criminal  jii^tic^  for  public  privi- 
loiiott  and  private  rigbta  Now,  bj  th«  common  law,  the  power 
to  pimisli  contempts  of  thiB  nature  belongH  incidentally  to  coorts 
of  justice  aiid  to  each  houKcof  Furltument.  No  man  everdoubied 
or  denied  its  existence  as  to  our  colonial  oaserabliefl  in  geoenl, 
whatever  may  have  been  thoii);ht  aa  to  particular  esercisws  of  it' 
Nor  iB  thia  power  to  be  viewed  in  an  unfavorable  lipiil.  It  i«  a 
pririU-KC,  not  of  the  members  of  cither  hoitiie,  btrt^  like  all  other 
pririlcgcH  of  Congress,  mainly  intcndc-d  a»  a  privilege  of  the  peo- 
ple, and  for  their  benefit.*  Mr.  Justice  Blackslmte  has,  with 
great  force,  said  that  "tan's,  without  a  competent  autliority  to 
secure  their  administration  from  disobedience  and  coitt«m|it, 
would  l>o  vain  and  nugatory.  A  power,  therefore,  in  the  supreme 
courts  of  justice  to  suppress  Buch  contem]tts,  etc.,  results  fnua 
the  first  principles  of  judicial  establishments,  and  must  be  au  in- 
separable attendant  upon  erreiy  superior  tribunal."'  And  the 
same  reasoning  has  been  applied  with  equal  force,  by  another 
learned  commentator  to  legislative  bodies.  "It  would, ^*  «•>-> 
he,  "be  inconsistent  with  the  nature  of  snch  a  body  to  deny  it  the 
power  of  protecting  itself  from  injury  or  insult.  If  its  delil>era> 
tions  are  not  perfectly  £ree,  ita  constituents  ore  eventually  in* 
juR-d,  This  [lower  has  never  been  denied  in  any  country,  and  is 
in(;id<;ntal  to  the  nature  of  all  le<;>slative  bodieo.  If  it  posseHBes 
such  a  power  in  the  case  of  an  immediate  insult  or  diaturbance:, 
preventing  the  excri-'iso  of  Ua  ordinary  functions,  it  is  im)Kwai- 
ble  to  deny  it  in  other  caaea  whicli,  althoujiii  less  iuuDOdiutu  or 
violent,  partake  of  the  same  character  by  liaviui;  a  tcnd«Dcy  to 
impair  tlic  firm  and  honext  discharge  of  publie  duties."* 

I  847.  Tliis  sut>juct  has  of  late  undergone  a  great  deal  ui  dia- 
cusston  both  in  Kngland  and  America,  and  has  finally  ft!ccived 
the  adjudication  of  the  highest  judicial  tribunals  in  each  conn- 

I  4  BUi^lcComm.  283,281,  SSS,SMi  1  Blxk.  CWimi.  I«1,I«S:  Com.  DIk. /Hrfi^ 
meni,  (i.  3.  S :  Burihtt  >.  Abbxt,  14  Fjot.  R.  1 ;  Bunbu  v.  Colianu,  U  E>a.  K.  US ; 
t.v.6  Uotr.  Put.  Cuo.  KB.  199. 

*  Chri>liui'»  Now.  1  Kuek.  Camm.  161. 

>  I  n\hck.  Comm.  sen. 

•  R««lcMitlMC««ll»ti«tt,clt.  4.pi4ai  1  EMtiCcaiuii.(ldedU.)XMt.  II.  | 
ni.  S3S. 


CH.  XII.] 


PRITILBOES  OF  COKQHESg, 


«16 


try.  Ill  each  country,  upoa  the  fullest  coitHidoratiuii;  tbc  rcmiU 
was  the  namf-,  namely,  that  thv  power  did  exist,  and  that  the 
lej^iiilttlivi!  body  uaa  the  |>ruper  and  <'\<;luiKive  fonim  to  decidu 
when  the  c-outompt  exiMto<d,  and  when  thore  was  a  breach  of  itii 
privilege*;  and  that  the  power  to  puninh  followed,  aa  a  nece«Mry 
incident  to  the  power  to  take  cognizance  of  the  offence. '     The 


>  ThelMnwdrMdrrbieflemdUBiiiiImv.  Abbiilt,UF,a*t,B-  l-.Bunlplt  cCoImM, 
14  EUI.B.  Via:  *^«.  t  Oo*.  Part  K.  14^  lWI;aiid  Airinwo  r.  Dunn.  8  Whrit.  A. 
S04.  Tbe  qnortkiii  u  aUo  uncb  diwiUHit  in  Jtttrnoa't  UbhiuI,  }  t,  fctid  1  Tuck. 
BUok.  OomiB.  Apji.  nott  ff.  SOO  M  SOO.  Sm  kIw  I  Bluk.  Comm.  144.  lU.  Mr. 
Jclbiwn,  in  hi*  Manual  d  3\  in  ouuKtntiuK  on  tbe  nue  of  William  Diiaii*  for  • 
[■olitiiil  libel.  hiuuiniDKil  uplli*  iTMDoinjton  nqbiide  wttha  tn«nif««t  louiUigi|^nit 
the  fotrm.  It  pmcntB  the  Mnngth  o4  the  arKWDcnt  on  tliat  Mb,  •nd,  on  thmt  Mwnnt, 
deacrvca  to  be  cited  U  Utgt. 

"  In  d>rb*(iii|i  the  URaUljr  of  tlib  ofibr,  tt  wm  Inaliud  in  uip|nr1  of  It,  that  tfrnj 
Diiu,  by  th*  law  of  Batnw.  and  >«wy  body  of  in«n.  [infLiMc*  the  right  of  wIMrfwiee ;  thrt 
all  public  fnuvttenarimuvNHntiitlyiiivmlfd  nllh  ttw  [OTen  of  tglf-prMttratton  ;  ihtt 
Ibcy  have  an  inhtnnt  right  to  <lv  all  acta  nermMry  to  keep  thFniw|v«  in  a  condition  to 
diKbaige  tbe  triutioonOdod  t«  them ;  that  when«Ter  aalhoritiei  arc  Ktr<n.  the  mcaiu  of 
carrying  thani  Into  azoeutioa  an  (inn  by  necHwry  implication  :  thai  Ihn*  *v  aro  tlia 
Brilith  Paillamvnt  mwcIm  th«  right  of  pniil>ihlnK  contmiipbt ;  all  tliv  t'isia  1t|p«Iatnna 
axorciae  tho  aamB  povpr ;  and  every  court  don  tlie  mmf  ;  tllat,  if  wp  have  it  not,  we  lit 
at  tha  inerey  of  every  intradtr  who  may  enter  our  iloon  or  |(all««y,  and,  by  noiac  and 
tDBMlt,  tvadvr  procaolliig  in  biuinau  Impiwticabia ;  that  if  our  tranijnllllty  ia  to  ba 
perprtually  ilittDibed  hf  atnr^afu  dafaiDatioii,  it  will  ui>t  faa  poaaibla  to  exerrloe  our 
iinotiona  with  the  leqvbitaooolnanaiidilcliWntinn  ;  and  tlial  wemuit  Ihcrefonhave 
ft  powtr  to  puniib  theae  dartnrben  of  ouc  p«i's  and  procndinga.  To  thU  It  vaa 
•UMrad.  that  lliu  ParllanHnt  and  courta  of  England  liave  fogniuiiiix'  of  coniampta  hf 
tha  axpnaa  ptoriiioai  of  tlivjr  law ;  that  the  Stale  Iq^Ulatvi  ham  iKinnl  autliority. 
beua«M  ihotr  powen  ale  pltnary  ;  tli*y  rcpm>»iit  lliuir  i^itinlitiiouli  cuiiipti-lrly.  and 
poMCM  all  tlwir  power*,  except  luirh  a*  tbeir  i'oa>tilulioD<  hare  Fxpn'Mlydrnie'l  titcm; 
that  tha  courta  of  the  acvetal  Statta  have  the  aauie  power*  by  tlie  law*  of  Ilicir  Stalaa, 
and  tlMaacf  tlw  failttal  fanrwrnaiit  t?  tho  aam*  Siaia  lawi  adopted  in  ca«h  atalt^  by  a 
lawof  Coogreaa;  that  &on««f  thaaabadiaa,  Ihorafoi*,  derive  ihow  powr-n  (mm  natural 
or  III  I  i—ij  light,  bnt  from  exprtla  law ;  that  Cnngma  harr  no  tU'h  nalutal  or  Bacaa- 
atry  power  or  any  power*,  bat  mdi  a*  are  given  them  by  the  Conslitnlian  ;  that  that 
haa  (tivan  ikrm.  directly.  axeHiption  from  penonal  arrest,  exemption  from  (innilon 
abawbtn^  for  vhat  ia  Mid  la  thdr  honaa^  aad  powar  Mrar  thaii  own  UMmbae*  and  pra- 
«a«<li^:*  -,  (or  tliiM  no  fiirtbw  la>  ia  ■iciw«y.  tiia  CMrihutioii  bring  Itw  law ;  that, 
moreover  by  that  anirle  of  the  ronilitution  whkh  aalbeHtn  thpm  '  to  make  all  hwa 
ateeaMi^  and  proper  for  carrying  ialo  exe^ntioa  the  power*  vnteil  by  the  Conttitottoa 
in  Ataa,'  ibey  may  pravid*  by  law  lor  an  undiiiurbnl  eierciH  of  thtir  fUBCtloni^  for 
""IBp*".  (v  the  panltlMnant  of  oonlempta.  of  aHrafu  or  luamlt  in  their  piaaf nee,  etr. ; 
bat,  UU  th*  law  Iw  niaiU,  II  <loe*  iiol  ejltl.  and  dom  not  *il>t  froni  Ibrir  own  arglrct ; 
that  in  tba  maan  tin*,  howtnvr,  Iheyare  not  untnMerted,  IbeonlinaryBngiilrateaaad 
eonrtaof  law  being  open  a«dcaapeltnt  to  paniih  all  unjualiliabtedHlurhanoetordrta. 
mationi ;  a»d  even  tWirown  aetgeant.  who  mayappaiiildefiatiiHarf/iMniiloald  hbn, 
it  mmi  Ut  amall  ilMivfaaa<«a ;  Ikat  in  requiring  a  prerloaa  law,  tb*  OoaftUalton  had 


616 


COKSTITUTION  OF  THE   DNITED  STATES.  [BOOK  UL 


judgment  of  thu  Supreme  Court  of  Uto  United  Klah-s,  in  tlic  caist^ 
aHuded  to^  vontaiita  m  eluborate  and  exact  a  oonsidvnitioD  of  the 
whole  artriimcnt  on  ouch  side,  that  it  wilt  be  far  more  ftuii^ftic-, 
tory  to  f^ivu  it  iu  a  note  as  it  atanda  i»  the  [triuled  opinioti,  (lian 
to  hazard,  by  any  abridgment,  impairing  Uie  juat  force  of  the 
rcuaoQing.' 


iv^id  tHtlieluvMiliilityorthocItlan,  umtl  Mof  tiltaNibwiMvshouUaMbaiHtl 
in  the  rfgulai  fiinn  u[  a  bill  iiud  «1  Iou  liroail  {irivU^ow  il  may  bxbnkinl  b]r  Ih*  otbtV^ 
•adbolli  by  the  PrsidiDt ;  uidtltatalhcUiibtSBKpnmndfftXtd,  tbittiluaiMwUlkaa* 
liow  b>  mvoiil  otfcuoi;.     lint  if  ouo  bnndi  may  uhhiiib  ita  own  piivilcgcs  witboot  e<m> 
Wil  i  If  tt  may  do  It  on  the  tpat  of  itw  ocouion,  cooomL  the  U>  In  it*  own  bnut,  i 
aftar  tb«  bet  committal  iiulu  li«  nuituo  ^Ui  tlio  U«  umI  tb*  jui^uMvt  on  Ihst  bet  | 
if  tha  «ffenoa  ia  lu  b«  krjil  uiidi<lin«il.  and  to  b*t  ikclanO  only  B  n  luta,  and  ■ccontia 
t«  tbe  [HBitM»<irtli«  nioiumt,  and  Uieirlw  no  iimilatten  «itber  in  tbenuuuMrori 
are  of  tbe  punUbment,  tl»  voniliiian  of  the  dtiam  will  bo  pBtikma  iMdcvd." 

Thn miuiiiing of  l.onl Chief  JuilhrEDn  Ciivy  In  Bex*.  ltrMaCraaby.8  Wibon'aB.  II 
uij  <>I  Lord  Ell"iil<inHiKh  ill  Kiinli'lt  r,  AUutl.  U  Kut,  B.  I,  U  txoaidlngly 
uid  itriktntc  ag&iiisl  that  favorvd  by  Mr.  JolforaoiL  It  ■liwtmai  aad  arill  reqoite  na  ■!• 
Untim  jxriuul.  Sea  uUa  BurJctt  v.  AUntt,  4  Tanut.  Et.  tOl  ;  t  Dcnr'a  Pari.  Kep.  UL 
>  It  M  DocaaMrytA  pnunbn  that  tlinHiiiEwu  brnHight  for  falaa  ianiriaoiunttttliyi 
p*ny  whohad  bMin  amateil  uudur a  iwniit  of  tliv  i>|M«k(ruf  Iha  Hooaaof  Uvpfaaanla-'' 
tjrea,  by  the  HTgrsDl-at-ainu,  for  an  allcgid  oontcntpt  of  thv  Hoiias  (aa  altfmpt  to  btilw 
■  member},  uid  the  cauu  wu  dedded  upon  a  demurrer  to  tha  jnMifiutioD  act  up  bgr- 
tbooOicar.  AfUr  a  pi«liniiriary  rnutlc  U|>uu  the nnp uf  tha •tjammt  t>y  tli«< 
Hr.  Jii»tii.'e  Juhiisoii,  in  <l'.'livi>ring  the  ojanioD  of  tbt  court.  pooMded  aa  folbvwa :  — 

"  TIio  plcxlingi  havt  nafrownl  Ibcm  down  to  tho  ilmfila  intohy.  whether  tbe  I 
of  RaprnKnlativci  con  tnlcc'  cogni^uiee  of  oontanpU  committad  «)cdiuit  thunart* 
undur  any  cirPumatancMl    Thn  diinH  uoiiiplabM  of  in*  anUaiiwd  ttadnr  a 
iaaupd  to  uim{H-1  llio  party'*  appvanuce,  uot  for  tlia  wtual  infliotiaa  of  puniahmMt  I 
an  olft'dua  comiiiitted.     Yet  it  nnnot  be  itenied,  that  tbe  power  t«  inMitirte  ■  ] 
tion  muit  be  dependent  upo«  tbe  power  to  pvniih.     If  tbe  Houm  of  Rep 
[KWHMUwl  no  authority  to  puniah  for  cotitempi,  the  InlttaU^  procM*  (aniad  ts  ika  a^' 
•ertion  of  tliat  authority  inwt  ban  been  lU^al ;  tbm  wm  ■  want  of  jniiadietion  lo 
juatify  it. 

"It  iiotrtainlf  trna.  that  there  ianopowcr  ^venby  IbaOMMtUatioa  loettharl 
to  punish  foi  contempts  ett^rpt  when  comaBltted  by  ttwir  own  awtnlKn.     Kof  doM  dw" 
judicial  or  criminal  jiower  flnn  to  tha  llnlt«l  SUU*,  in  any  pari,  Nipewxaly  extend  W 
tbe  infllctlanor  piinbhrncnit  for  oeoitflmpt  oftithnr  houae^eranyon*  (O^nliaalabnneb-j 
of  the  ([OTemnimt.    Shall  we,  thtrefocv,  d*ciclo  that  no  anrli  power  tsista  t 

"  It  U  I^l^  lliat  such  n  power,  if  it  «dala,  mtM  be  derived  fnini  imjiUtation.  and  tha 
geniux  and  nfiiit  of  our  innitntkow  uc  boatik  to  tbe  eierdM  of  iMpHnd  poweia.  Hb>I 
the  fienltiea  «f  nan  been  «om patent  lo  lb*  (tamlnx  ed  aiyxtemof  jgnTemrn' 
nouM  hara  left  notbinH  lo  implkatioa,  it  taanot  be  denbtad  that  tW  eflnrt  <> 
bwu  moda  by  tho  fraoMra  of  tbe  Coaallliitbia.  Bat  wbat  U  the  faei  f  Th"m  u  mt  in 
the  wbole  of  that  ndndrahk  ln*lram«nt  ■  grant  tt  powoi  whioh  don  not  draw  after  it 
olbtt^  not  expmenl.  bnt  vital  t«  tbtiresnciae  ;  not  aatwtaiitiw  and  fadcfcniknl,  ia- 
dtad,  bnt  BQXiliaty  ami  eabonltnatn. 

'Tbe  idea  la  utofiu,  (bat  gOWiWMBt  eaa  exlit  without  ItaTlng  tho  exetvlM  ot  dta- 


FRIVIUOCS  OP  COKGRESS. 


WT 


§  ^8.    This  is  not  the  only  cajte  in  which  the  House  of  Be]]- 
resoatativ«g  has  exerted  Uie  [lowcr  to  arrest  and  puiiitili  for  a  oud- 


crctiMi  •omeo'bFn.      Public  •ccaiily  ^ilnit  Uu>  aboM  of  uwh  ill>«rHi<iii  miut  mt  on 

twpoBtlUUtir,  and  itoMl  KppaaU  to  pulilie  >i)|"v''*>''i'">*  Wb«re  all  yamrt  ia  dsrirol 
troui  tho  paojilis  ami  public  tnnatiaaarim.  al  ahurt  uilflrroli,  ilcpoiil  it  al  tliti  bH  of  tlie 
pMi[ile,  to  be  raiumn]  agaiu  only  Al  thur  will,  indirjdual  Ttan  may  be  alanacd  by  tho 
tuoUBlcraof  ima^inalioD,  but  individual  liUiiy  can  be  in  llttladan^. 

"  Ha  ana  la  lo  Tbionaiy  aa  to  ili«|>iil<  Ihn  amrrtlon.  thut  th«  uU  anil  aad  aim  of  all 
our  Inatitiitinna  U  tlio  wfatf  and  baf>i>iii««v  of  tlie  citiuii.  But  the  r«Ulion  bttwwu  Iha 
action  and  the  end  is  not  alnsfH  bo  direct  and  pUpable  m  to  atrilu  tho  ejv  of  orcry 
ubaervi^r.  The  adiuica  of  goTonuiieiit  ia  tho  moit  abatmac  of  all  icioDCoa ;  if,  indoad, 
thai  can  ba  called  a  aciraica  ahlch  hu  biit  Um  Itxnl  jirinclplM,  and  |nactlcaHy  Moaiala 
In  llttla  mon  than  Ihn  exrii-iiw  of  a  muud  diicntloiK  apptiad  to  Iha  •xi^pmeW*  of  th« 
Mata,  aa  they  ariw.     It  ii  the  •dcncc  of  npcdaunt. 

"  But  if  thera  ia  one  maxtin  which  noccaMrilj  rida  «ror  all  othcn,  in  tho  fnetioal 
applinatian  of  (Orammcnt,  It  1»  ihat  the  public  ranr.tlonarin  moit  bo  loft  at  Ubtttj  to 
•nrdiotha  powrraiiliich  tlii<  |>ruj<](<  have  intruxtcd  tii  tlu'iu.  TlifliiUanal  and  dignity 
of  thoae  vho  rrealnd  thrm  rnjuini  tliocicrtion  uf  the  powrra  iiiilupnuable  to  tlio  allain- 
ment  of  the  endi  of  their  crmtion.  Nor  ii  a  cuual  coaQiut  with  tho  righta  of  paitiuular 
indiriduala  any  nasuu  to  bo  urged  againit  the  eicrciae  of  inch  povcn.  The  tcntch 
bi'jirath  tha  i^llom  may  ropinn  at  the  tutc  which  await*  him ;  and  j«t  it  i«  no  Uia 
nttain  that  lh«  latta  uiidi't  which  hn  anlTon  wi>i»  madn  for  hi*  aoturity.  Tha  uanaaon- 
able  niuriDDri  of  imlividiiaU  a^inxt  Iha  mtnint*  of  tocirty  liate  a  dinct  Uoitucf  lo 
produce  that  wont  of  all  dtepotiuti^  which  nakta  every  individual  the  tyrant  ovn  kia 
i>aiKlit«r'«  righta. 

"That  'tb(!  aafoly  «f  the  pM]i|*  l»  thi>  auprrmn  law,'  doI  only  comporta  witL,  W  ia 
indiapenMble  to^  tlic  ncraina  of  thooe  powm  in  thrir  public  fnnctionariea,  without 
whioti  that  aafoty  eaniMt  be  gnvdoL  On  thu  prindpls  it  ii,  that  oourla  of  joitica  arc 
unlvwMlly  ac^nowladjiad  to  bo  Tested,  by  their  veiy  crtntion,  with  pawn  to  impoae 
uiriicv,  KHpMt,  and  dacoTXini  In  llmlr  p>«*c»c*i  and  •nbmiMlon  to  thalr  Uvt(<:!  nia»- 
datc^  and  m  •  aofoHary  to  thii  propontlon,  to  pnMm  thnnaaltaa  asd  thoir  uUiom 
from  iha  a|q*Mch  of  inanlta  or  pollution. 

"  It  la  tma  that  the  contta  of  Jundce  in  tha  United  State*  an  veatrd,  by  exptaa 
utatHt*  p«<OTition,  witli  jioavr  to  Aue  and  Inprfaon  for  <ual(B|>tji ;  but  It  don  not 
follow,  frumthiacircumEtaDce,  tltal  th«y  wonU  nut  haraCMfciatd  thai  pwwtc  wllhoot 
the  aid  of  the  alatotr,  or  not  in  ca«a^  if  uwh  aboold  oocur,  towliich  auch  atalula  pro- 
tldoa  mtif  not  extend.  On  tho  contrary,  it  ii  a  legialalirc  anortion  of  thii  right,  a* 
InddeMB]  to  a  pant  of  jodidi)  power,  and  can  only  boconMlcRd  eitheta*  an  inuanoe 
ol  ah«ndaRt  tautlon,  or  a  ttKtilaiiT*  >l«oUratioii,  that  U>>  power  of  ponUklng  fur  con- 
tonptaihall  not  extend  beyooil  ita  known  and  aokwivledgnl  limitaoT  ins  and  imptia- 
onment. 

"  Bat  It  la  oontendad,  that  if  tki*  power  in  th*  llanafl  of  BtprtMntativra  1*  to  ha  *■• 
earlrd  un  th*  plaa  of  M«aatiy,  the  givuad  la  too  broad  and  tho  raault  too  indallBil*  j 
thai  tlio  *xa>.'»lirii,  and  every  co-ordinate^  and  evt«  aubetdlaatat  bnach  of  the  gorara- 
mrnt  nwy  renrt  to  the  aaoie  JattHlcation,  aad  the  whola  anuna  to  tbaMMJvea,  in  ttie 
axirdMof  thia  pown,  tbe  moat  lyraankal  lioeBtloiMnHW 

"  Ttria  U  nniiiiMitionaUy  an  evil  to  be  gnarled  a^nat.  and  If  tha  doctrine  maj  h* 
puahed  to  tliat  extent,  it  moit  be  a  bad  doctrine,  and  It  Jnatlj  draouMod. 

"  But  what  la  tbt  alieraativ*  r    Tho  aigsment  otirloualy  iMda  to  the  total  aaniUk- 


COKSTITOTION  OF  THB   DSITED  STITES.  [BOOE  Dt 


tempt  committed  wiUiin  the  walU  of  the  Ilotue.     Tbo  porcr 
was  exerted  ■  iu  the  caite  of  Roliert  Randall,  in  December,  119a, 

UoD  of  tlic  poacr  «i  tbc  Howo  of  Rcptwenutivca  l«  goird  itatU  tniia  cobUnpci ;  wd 
lwv»  :t  eipoand  to  tvcry  Indignlif  and  lBti7ni|itiiiD  that  ladfooB,  ocpricc^  or  ■«■> 
coniplrni^y  mtf  niodLui»  tffiitiKiI  It.  Tlli*  mult  ii  fnugfat  atth  t«o  mudi  kliMUditir 
not  1i>  bring  liitu  Uuiibt  tlia  taujiiln««a  of  any  ar]piaimii  ttvm  whkli  il  b  drriTcd.  nut 
*  itvlilwniljvu  aBxrmbly,  flathtd  will)  tbr  iiMJ«>7  ot  tlia  {Moptf,  aenl  chuxrd  vitk  the 
con  .if  nil  tliat  U  iltar  to  thau ;  MmpoOTd  of  tlio  HHNt  ditdBgitUwd  dtlMas  t^"*^ 
and  dinwa  tognthar  rraiu  tv^rj  iinuter  of  a  gnat  naliaa  ;  whom  ifeUfaantio«>  tn 
n<}uinil  by  pubUo  Ofnuion  tv  b«  eoodvctad  uniW  Ac  nv  of  tlio  pabUc,  ui4  lAmt 
dMltion*  mtUBt  b«  dotbed  with  all  that  laiiMiljr  •hicfa  antlnitud  cnnHilww  t»  tk& 
wlad«ai  and  puritj  can  incpin,  —  that  (udt  aa  if  bly  iIumIiI  sot  fcmrm  tt>*  jnn* 
to  iu]>pi«H  niattm  or  topd  Jniult  ia  a  mpfMMtioii  too  ailil  to  be  h^khIbL  Aad 
an.-or<!Jiigly,  to  stcM  th«  pmnii*  of  thaM  ooiuManUotta,  U  ba*  baM  ar(wd.  tk>t  tk* 
tight  of  Uie  mpvctire  houM*  to  cxcliufc  tnm  tbcii  pnaMC^  and  tliali  afaaolsl* 
within  thciT  ovn  wallt,  earrr  witli  tbtao  ths  right  to  puabk  t»aiUmf*a 
thflir  |t<>a(fi(» ;  wklU  tha  abaolata  tajtUklin  power  gmn  t«  CWBgnija  witUn  tU*i 
triot  «imUh  tbtoi  ii>  ptortd*  b;  Uw  tgiiiMt  all  othar  iiunla  ii^iBat  wkkh  tbnc 
uy  arriarity  (or  praTiiti^. 

*■  It  b  to  be  ohwrved  that.  •»  br  ••  tbc  iam*  of  thi*  mom  h  fni|dl(ated.  lUi  aqp>- 
tnent  jialdi  aH  right  of  ibe  (JaUitlir  tn  arror  to  a  daciMa  ia  bk  b<rot ;  fbc,  «••  cmbW; 
ftoH  tha  plcadiiigi^  bnt  tlMt  thi»  niTBiit 'mmI  Cir  •■  otfmee  eanuBhUd  in  tha  iMM^ 
dlala  pnaMc*  of  tb«  Howe. 

"  Vm  b  it  itnoHtifwl  to  nocka  what  dtOenltka  the  H^tiaa  of  thh  tight  In  thi 
Bowe  <^  Reptwntatim  teniflai  1^  aha  It  b  twdteod,  that  tha  cooeMin  of  lb* 
pxnr,  if  riodtad  withia  theu  v«U>,  iiliniiahw  the  pmt  gnMiub  at  tha  aigaiailit. 
to  vii  L  lb*  want  of  aa  aiyw  grant,  aad  the  UBRrtiktal  lad  oaiMaal  aainta  of  dM 
pown-  hen  irt  ofk  For  why  ihoMld  tha  HoMa  ha  at  invrty  to  eserdH  aa 
«■  n-H— 1««^  imI  aaJ^ned  powar  witUa  tWir  wbDi  aay  nw«  thaa  ■Itheiil 
ir  tha  aadc«j  with  taiiTMoal  rt^t  aod  powv  be  MaarMd  to.  It  wtn  foaeh 
tbu  to  eidaauD  i  aad  tt  ivfuino  no  endMnoM  af  wagiaatiMi  Iu  tabiUt  th«  nJlw 
fame  wiaain^i* w  whk* ari^  iteah  bum  mA  m  itiiLlida, imfamtvftA  lh>« 
<f  a  MibMBttf*  MHBUy. 

"VorwavMlMrrilMtfaobtMMUIr  mBmwI  bfCMaRl^  t»  tiafr 
pqiaw  wiikia  tha 4iMjBt    That  powo»ay.  ii  li  i  L  be  efftM  m taaay  | 
«M  hiMJiJ  bj  tha  Ctertilatk*  ta  iMiaJ  «•  aaay  pufpnw  hiBifiawlJi  ta  tha 
Motrilj  Md  digailr  of  tte  fmtnl  (MntaaMt;  b«tkt»«a  pn^Hn  af  a 
|tvra aod  tiMnt  ^KaotB'  Ihaa  Iha    iJMlw  wWifc  May  ta  ^aawbawJ  enntiMfW, 
nd  whkh,  bos  tMr  <«t  Mtan,  afaft  af  m  faMha  litairtin     JwikU  cwftf 


I 


«fll  Mt  aiWt  of  ^  OHtBriaM  wfakfc  IhM 
«4rM»dbrpBal«hi 
«Akh  tha  (fiibrt  «**a*Vl  M^  be 
»  But  «M>>«gh  Aa  V^avta  hM 

Mcrt  and  art  b*  aA(taii&    Xertikaa. 

■Waaw  wnwaiwaih»faKtha«l>wttowhfcM^^iHh*rag|iwarrf 
a  bgiiklii*  art.  B^  be  ouriij.     Oa  thtf  Migaot  tfta  haaaifc  it  thrir 
fcawdiathaiiiTiiiiai  of  Ifci Cbiatftatb* 

-TbaiaMBt^naetfaalfcwbMh  tW  aMMtiir  cbt 

BymtarfWTwwNIMMrl?! 


teha 


CB.  XII.] 


PKiriLBGES  OF  001 


819 


/ 


for  Ml  attempt  to  comipt  a  member  ;*  in  17d6,  in  the  case  of 
■■-  't  a  cballongo  gireu  to  it  member,  whicli  vus  held  a  breach 

^libtnttrc  UKiahliea  of  Uu  Cuioii  Buy  MfOin*  mi  Mun-iw  oa  the  iitinuijile  «f  milt- 

"AaaHagjmA  Die  Minn  of  Um  cue  fiimkh  the  anircr.  —  ■  liU  kaM  fvmUt  fmar 
aJi^anti  to  IA4  md  frrvfr/Kd ; '  which  i*  the  powir  at  iai^ntmaaaA.  \\  nty,  at  fint 
vivw,  aitii  Uam  tbv  bictor;  of  the  jiiutkc  of  an  k^UllTn  bodiM,  b*  lliaiii^t  t«  01- 
UtA  to  Mbtt  intirtloM.  But  tynry  Mlwr  aill  b*  found  Vt  bt  Bi*ra  oDMiiutMian  Ua 
CDallnMiMait ;  mum  oominilmeiil  klan*  ia  the  ■ItcniatiTg,  when  the  iadivhlual  ptovM 
MBtOBudan*.  And  enn  to  tb*  rfomrini  «{  impriManMBt  •  ptrtad  i*  iupned  \>y  the 
nwara  «f  UiingB  1  wnee  tbe  oxiitciiM  of  the  pawn  thftl  InpiitOM  I*  indiifWf  hie  to 
ill  oeotiiiiMiiCD ;  BuJ  nlthough  die  U^altv*  pvww  oenlfainM  pvprtoal,  ike  tigbUtin 
hodr  tmttt  la  abn  on  Uh  Bonunt  «f  iu  adjoanidaiit  or  ptiodinl  dbtdotlon.  It 
tallow*  that  bofnlMftiiii^nt  mutt  tmiiiiMte  with  that  ailjouniMtut. 

"Thia  Tiewof  theentjmt  DMHHrily  itlaboowditotfar  rsfreue  of  ■  Mprin,  whkli 
bu  MonetiiDn  di^t™'*^  dcHbenltTo  aormfaluu,  when  nnilar  ibe  inAuuice  of  sttoog 
puMOU  or  »idt*l  leeikn,  but  the  hiM«i>te«  of  whidi  Iiato  long  uliioe  rtBainnl  on 
leoanl  oii1;a«  hletorlnl  fecbi,  not  h  fVKwUnti  for  IniSUtitin.  In  Iha  priMut  UxoA 
•nd  MitM  itlatuof  EiikI"I>  institutions,  then  uuomuraduignof  thvirbtiog  tSTintl. 
prehabl}',  than  in  our  own. 

"  But  the  Amertcaa  Itf^tluin  bodin  hare  nerer  jMoaMMd,  vt  fcrttnded  to,  the 
OBnipotcno)  vhlvh  conOitulse  th«  lanillB|t  faalurn  in  ttw  l^lalMlM  ausmhlf  of  Gmt 
Britain,  tBil  «hich  Tiny  bar*  Inl  iii-<-iu>iaualIy  I*  th« «x*TGhie  of  eapriM,  uniUr  the *|>«- 
OlouB  afipeannue  of  m'r[l«tl  nrwuturnt. 

"If  it  be  inqnircd  what  Mcantf  b  thcn^  (hat  with  an  olHcer  avowing hinuwlf  dc- 
TMad  10  their  will,  lh«  Kounnof  R(<iimwBtatiT««wlll(onnnr  iti>  i>iinliiliinK  prnmr  t>  iha 
liaits  «t  i»|irisoninrnt,  uiil  ijut  ymh  rt  lo  tln^  inlliclwu  of  e<>r|Kii<?iil  piintthintut,  or 
Oreo  dtath,  and  vxriviw)  it  in  cajwaolTnliBg  the  libnty  of  tiprri:h  and  uf  the  pna  ; 
tbe  trplf  ii  to  be  found  in  tlie  Mnaidenition,  that  the  Coaililution  was  farnwd  in  end 
bt  an  adroBcod  ilatc  «(  aocitrf,  anil  ivita  at  nveTj  point  Od  reraind  a|iiaiaDe  and  Rxed 
Mraii.  )t  it  not  a  new  cmtiov,  hot  a  conibinalian  of  ^l>tln^  nuteriah^  wbee*  ptnp- 
«niM  and  stlribotM  w«m  riMiliariy  umivtsUiod,  aad  had  tmn  d«tmuin«>l  by  nrlt- 
•nled  nperimenla.  It  ie  not.  Uwrefore,  naaoniiig  upon  ttungi  at  tliey  an,  to  aepfoe* 
Alt  any  delibcntire  awembly  oeastltutoil  nndcr  it  would  ««er  Haert  any  other  tight* 
and  powan  than  iboaa  which  had  barn  talabllahed  by  (anf  |>nnk<%  and  temttitA  'bf 
pwbhc  epiaioft.  ll*Un«4ioly,  aluo,  would  be  that  stAte  of  dittrati  whkh  rstta  not  ■ 
hope  upaa  a  vml  influimoc.  Thi>  mcnt  aloolwte  tynuny  OonU  not  uibdat  where  men 
mold  M*  be  tnwtnl  with  poavr,  beiraaie  thoy  ini||fct  abnw  t^  iwndi  loa  a  nwrniirt, 
«trld>  hM  DO  otbct  beni  than  the  aound  monll^  tnodtratioB,  and  ilia  yood  wn»of  IboM 
who  conipnM  II.  lTnrca]ional>la  Jeeloiule*  not  only  Might  ibe  plsaMNi^  bnt  dfawlv* 
tlto  wfy  texlanc  of  eorirty. 

"  But  il  b  anriMd  tbat  tb«  tnftrence^  if  any,  •riitng  nnder  ttw  C«n«litntie<i,  ii  ifpinat 
the  ox»n4H<  of  the  powEn  ho*  aawrted  by  lli«  KoBw  of  R*pre*«ftMlna ;  tbat  llin  ai- 
]itM*  uninl  of  pewtts  to  panlah  tMr  nsmben  nspcctitely,  and  to  axpol  th>m,  by  the 
■|i|>liRilion  nf  a  faMlUar  muin^  iaiiaa  ao  fanpliMtioa  ^mrt  Uie  power  lo  punish  any 
ether  Ibsa  tbtir  own  nenibFra. 

"  Thii  argnnaeBt  prama  too  lOMfc ;  for  ita  diivet  af(4leatloB  would  ImJ  to  the  aani- 
hilatkoi  of  almort  eve«y  powerof  Congrea.     Te  atom  if  laws  mpoa  any  aalyrat, 

>  ITMkM'aBlBek.Oamm.Aiip.tWtoSOft.iMte:  JeOtnoB'e  ICanml,  1 9. 


■ 


620 


CONSTITUTION  OP  THB  DXITED  STATES.  [BOOK  III. 


<^  prin1ef(e;i(ii)  and  in  May,  1832,  in  the  c««e  of  Samuel 
Houston,  for  an  aasault  upon  a  member  for  words  epokivn  in  his 
place,  and  afterwards  printed,  reflecting  on  the  chai-actcr  of 
Houston.'  In  the  former  casv,  the  Uouiie  punished  the  offence 
by  imprisonment;  in  the  latter,  by  a  reprimand  by  the  speaker. 

wltliuut  tlie  iHuicUon  of  imnbhuMnt,  L*  otwioiwlj  InipOMibU-  Yet  thnv  it  an  Kspnm 
gtaiil  or  |wwer  to  puaiiih  in  «m«  olan  of  (.'Htn  lud  onp  obI;  :  >nJ  ftti  tho  pranuhinf 
power  cicrcUcil  bjr  CoDgtiM  in  Miy  cuca,  crx«iit  tboM  wfak^  reUtc  to  piracf  uid 
ollencni  mkinat  tht  kwi  of  nfttJoiu^  U  dcrirod  from  untdiaktion.  Xor  did  tlw  id**  n<r 
occur  U)  any  on*  tbat  tli«  «xpr«M  Rnml,  in  «iiii  gIm*  of  cum,  refsltnl  Ilia  MawnplkM. 
of  til*  ]>uiiialung  powpi  iii  itiy  utiicr. 

"  The  Initlt  U,  that  tU«  exercise  of  the  pownv  givm  otbt  tlirir  om  memben  ««•  «f  ' 
nich  u  delicate  natutn  that  it  oouitiltitianal  [MoriNoa  bawimu  noMMSiy  to  t— tt  ar 
commuaicatclt.  ConMJtutcd,  aa  that  body  is,  eJ  tk«  dtlcigataa  af  oa(if(darat«J  SnXM, 
aome  luch  pnyri»<on  vw  u«cmMry  lo  iplanl  afgaluM  tlMir  maiual  Juloui^,  naa  vterj 
proM«dtn^a)^riBian]pniawUtiv«a«aUiiidinuUyalI«olUiabMm«irint«i«*taof  tha 
8taM  whidli  Mut  him. 

"  In  T^r  ta  the  ingKeatioii  that,  on  tlui  Mun*  fonndatiMi  ti  nacawfty  vd^it  la 
nia«d  a  npantructara  nf  implinl  power*  In  Iht  vxacDilvty  ajkd  erwyoclicrdeisrtiitanl, 
and  avail  aiiiil»l«riiil  ullicvr  uf  thi<  f^nvcmniniit,  It  wonM  tia  tulUdvut  to  atetrv*^  that 
naithar  analogy  uur  prrculcul  wuiild  nupiiort  th»  aaaertioo  of  siioh  pi>««n  in  (aj 
oth«r  than  a  legislative  or  judicial  body.  Even  ratrujiiiDn  anywhere  cIm  woihl  bm 
Goutsmiiiatc  tho  loures  of  polilical  lire  In  the  rctireiniint  of  tha  cabtnal,  it  la  kol  n- 
fMcltd  that  tha  axacntiva  taa  ba  apiiroachad  by  iiidif[nily  or  intuit ;  nor  «a  it  vrtr  ba 
BCeaaanry  to  tlie»B(!UtiTe,oranyath«r  department,  to  hold  ■publkdelibsrattvsaaaaMa- 
biy.  Theie  are  not  arKumenU :  they  an;  visions,  whii^h  cur  ifac  ciijoymcait  of  nctaul 
bleadngi.  vith  the  nitack  or  (eint  of  the  hatpin  of  iuotpnanon. 

"  Aa  to  thn  minor  jiaiDt*  made  lii  thia  c*w^  it  b  only  naotnsry  lo  obstfra  tbct  Ibaa 
U  nothing  uii  tha  f*o#  of  tliia  iwori  from  which  It  «ii  appaai  on  what  andaMo  Uua 
warrant  na  uau«d.  And  wa  are  not  lo  pnaumr  that  tfao  HouM  of  Raioaaantatlni 
vould  have  inucd  it  without  duly  sitaUiahing  the  bet  diaificil  on  tba  isdivldat]. 
An<l.  01  to  tlia  dittance  lo  which  tha  procoa*  ml^t  mch.  It  U  vary  dear  thai  than 
eibta  uo  naaon  lot  oonAninii  It*  opi-nition  lo  tha  llmlla  of  llie  Diitritt  «f  Cotaaibda. 
AftwpauiuKtbowiliuutii,  w«  know  nu  buuiida  Uiattan  be  pnwribed  to  its  taoffe  bat 
tlioM  of  the  ITuited  Statcn.  Atid  why  uliould  it  be  reitnctol  t«  Other  bmwdarlta  I  Sluh 
an  the  limiu  of  tlic  IrgiiUtinij  powers  of  that  body  ;  atid  IhitlBbaUtaiit  oTLaBiaiaaft 
or  Unise  mny  ai  probably  c.luir][o  thero  arilb  bribtry  and  ooniiptlan  or  atlnnpi  by 
tflter  to  induce  tlii^  cniiinili«ion  or  (ilhirr,  aa  lb*  intuMlaal  ei  any  olliar  MClieai  of  tho 
Union.  If  thK  lucoiiv«iiii>ui-ii  bu  ur>c>Hl,  ihr  rrply  ia  obvioiai ;  Ihnc  t>  no  dJAoahy  in 
obaarvinj  Ihal  rMpwtful  dcjiotliiiifni  which  will  reu<ltr  all  appndieniianB  i  hiiiMirli  ■!  " 

See  ain  Uei  r.  Braoi  Croiby,  3  Wilsoo.  R.  188.  In  the  «anvKitiot>  a  janpnatiiou  waa 
nbwl*  Mid  referred  ta  the  aclect  committee  appointed  to  drad  tho  Conalltutlon  gtvinit 
anihantj  to  ptuiah  tor  oontcmpla,  and  ennmaralinK  tbr«.  Tha  oMBBtlttM  nuulo  no 
nfwit  OB  iha  aabtaet    J««m.  of  ConvanUuB,  SOih  Aug.  MS,  Ml. 

'  Jel&rwa'a  HmimJ,  g  3. 

*  See  tha  Bpwchia  uf  Hz.  I>oiidt>ige  and  Mr.  Bargea  on  Ihii  ocguiow. 

{«)  TheouBWUthatof  JamcaGuDU.  Soa  AnnU*  uf  CangrMt^  lal  Sen.  1th  Osog. 
Pk79e. 


CB.  Xtl.] 


PRrviLEoes  or  oonorbbb. 


681 


I 


.So,  in  1800,  in  t)ic  csac  of  Willioin  Duane,  for  a  printed  libol 
•gainst  th«  Senate,  the  pnri^  wu  held  guiltj  of  a  contempt  and 
punished  by  imprisonment.' (a)  Nor  is  there  anything  peculiar 
in  tlie  claim  under  the  Constitution  of  the  United  ^tatea.  llie 
Bame  power  han  )>efin  claimed  and  exercincd  repeatcdlj  under 
the  State  ^rernmenta,  independent  of  anv  speciu)  cotiHtitutional 
pro\-iBion,  upon  the  broad  ground  stuttMl  bj-  Mr.  Chief  Justice 
Shippen,  that  the  members  of  the  legislature  are  legally  and  in- 
herent); possessed  of  all  such  privileges  b»  are  newssurj  to  ena- 
ble them,  with  freedom  and  safety,  to  execute  the  f^>at  trust 
reposed  in  them  by  tlic  body  of  the  pt-«plc  who  elected  thein.*(6) 

§  840.  The  |K>wer  to  punish  for  eontempta,  thus  asserted  both 
in  England  and  America,  is  confined  to  punishment  during  the 
session  of  the  legislative  body,  and  cannot  be  extended  l>eyond 
it.*  It  seems  that  the  power  of  Congress  to  punish  cannot,  in 
its  utmost  extent,  pi-oceed  beyond  imprisonment;  and  then  it 
terminates  with  tlie  adjournment  or  dissolution  of  that  body.* 
Whether  a  fine  may  not  be  imposed  has  been  recently*  made  a 
question  in  a  case  of  contempt  before  the  Floufie  of  Lords ;  upon 
which  occaaion  Lord  Chancellor  Rrougham  expressed  himself 
ID  the  negative,  and  the  other  law  lords,  Eldon  and  Tentcrden, 
in  the  aflirmatire;  hut  the  point  waa  not  then  solemnly  de4:ided.* 
It  had,  however,  been  previously  afhrmed  by  the  House  of  Lords, 
in  the  ca.4e  of  Rex  v.  Flower  (8  T.  R.  314),  in  case  of  a  libel 
upon  one  of  the  biahopa.     Lord  Kcnyon  then  said,  that  in  ascer- 


>  Jonn.  of  !t(Mt«,  STth  tUtrh,  IMO ;  JHTonon'a  lluiuO,  f  S.    8m  iIm  BunkU 
*.  AUMt.  14  bat.  I. 

*  Boltan  V.  Uattin.  1  D*ll.  R.  188.    See  alici  flouw  of  DelegitM  in  I7SI.  the  cm* 
of  John  WanUn.  1  Klllot'*  OnbatM.  6a  ;  Coffln  r.  Coffin,  i  Uul  B.  t,  Si,  SB. 

■  Dann  v.  An.UrMo.  S  Whot.  K.  SOI,  S30. 231. 

*  Dunn  r,  Andenon,  «  WhnL  R.  Wi.  !a<^  231 1  1  K«nl'a  Oomm.  Lect.  11,  p.  90. 

*  la  l»l. 

*  8r«  •  iMtncd  wtk)*  <m  thti  tabjtct  ia  the  EaglBh  I<w  H^juum  for  Jmlf,  lS3t. 
p.  1.  etc    pAriiunanury  Dtlatt*,  1831. 


(a)  In  *  rsM  decuM  in  yortoiber, 
1S73,  dm  SupitMc  Ce«rt  «f  Illinoii  piu- 
iiLcd  w  far  tfontempt  tlw  puhliib«r  of  a 
dalljr  pa|iar  invbowcolnnuMtikiappMnd 
•n  utlolo  nfccting  •nvnl]'  apnn  tb« 
ooort. 

{t)  Sn  ako  the  KceU  cue*  o(  Ilia  v. 


BMtMt,  1  Grajr,  M9 ;  Burnham  v.  Uor- 
Titmj,  U  Gnr<  324  ;  8t«Uf.  UAthnr*, 
S7  N.  H.  4S0.  The  oaurla  cum4  fauiulr* 
(nlo  Um  jiutic*  or  pinptwtj'  or  >  Itflik- 
UvB  pmbhninit  tn  tlw  ntjniUlan  of  • 
wtmbrt  for  mUoondDct.    Blu  v.  DutlMt, 

MfM, 


622 


coNSTtTirnoN  op  ms  cxited  !«taits.        [dooe  lit. 


tnining  and  puninhing  for  a  contempt  of  its  pririlv^M,  tJlc  [loiiH<j 
RclWI  in  a  judicial  ca|iacity.'((i) 

§  K50.  Th<>  Hixth  wcticm  of  tlic  lirst  article  ountatns  tui  enu- 
inorntion  of  the  rii^rhts,  privilc^'^,  and  dinAbililii-d  of  the  mtuu- 
hers  nf  «3ch  house  in  thi'ir  porxonnl  and  iBdividiinl  cbaractcre, 
a«  oontradifltinpiiahcd  from  the  rights,  privileges,  and  diaaliili- 
ties  of  (hu  body  of  which  thcv  aro  mcmWrs.  It  may  here  again 
be  mnarkfd,  thut  thoso  rif^hltt  tiiid  privileges  are  in  trath  the 
right*  and  privik-pwi  of  thoir  c<>n»tilu«ntit,  and  for  tJieir  benefit 
and  security,  mthcr  than  the  rights  and  privilegea  of  the  ntemticr 
for  his  own  tK^nerit  and  s<H'urity.'(4)  In*  like  manner,  the  diim- 
bilitics  imposed  arc  founded  upon  the  same  comprehensive  policy, 
to  guard  the  powers  of  the  representative  from  abuse,  and  to  bc- 
cure  a  wise,  impartial,  and  uncorrupt  administration  irf  his 
dutira. 

§  851.  TJic  first  clause  is  as  follows:  "The  senators  and  rop- 
resentativea  slmU  receive  a  coniponsntion  for  their  «enicea,  to  Iw 
ascertained  by  lav  and  paid  out  of  the  treasury  of  the  United 
Statea  They  shall,  in  all  cases,  except  treason,  feli>ny.  and 
breach  of  the  peace,  be  privileged  from  arrest  during  their  at- 
tendance at  the  session  of  their  respective  houses,  and  in  going 
to  and  returning  from  the  same.  And  for  any  speeeb  or  debata 
in  either  house  they  shall  not  Ite  questioned  in  any  other  placa** 
§  852.  In  respect  to  compensation,  there  is  at  pfeaent  a 
marked  distinction  Iwtween  the  members  of  the  British  Parlia- 
ment an{]  the  members  of  Oongret^s,  the  former  not  lieing  at 
present  entitled  to  any  pay.  Formerly,  indeed,  the  members  of 
the  House  of  Commons  were  entitled  to  receive  wages  from  their 
constituents ;  but  the  last  known  case  is  that  of  Andrew  Mflrrell, 
who  was  a  meml>er  from  Hull,  in  the  first  Parliament  after  the 
restoration  c^  Charlea  the  Second.  Four  shillings  sterling  a  day 
u«cd  to  bo  allowed  for  a  knight  of  the  shire,  and  two  shillings  a 

>  In  Tatct  K  I^niiDg,  t>  Johnt.  R.  417,  Mr.  JiatiM  Pblt  wU,  (lal  -tl-o  rtght  U 
pQDtthing  for  touI(<m|iti  by  ■uminit7  coDviirtioii  i*  jahcrrnt  In  aU  mitfUorjiutlc*  atul 
t«gi(Utii«  u«enib1ii%  and  U  cncntial  tn  ihcir  protretioo  and  «xU(«iic«t  It  is*  Insck 
o(  the  aMnmon  kw  wloptod  and  uiKtioncd  b^OBr  BUU  coaititiitioo.  T1ie<leHuan 
iDTolwd  in  this  powDr  i*  in  1  )[T>wt  mawiira  arUtraiy  and  ondcAnatile  :  and  jri  th* 
«iperi*nr*  of  if»  luu  tlRmon«tniud,  th«t  it  it  pnfwtiy  cowpatib)*  wilii  civil  llbaiif, 
■ad  aiuiltur  t»  thti  pumt  fiuU  of  Jiutke." 

*  Oom.  Dig.  P^rlUmaU,  U.  17. 

la)  8m  alw  Hiu  b.  BullMt.  3  Qnj,  US.  <t]  Cottn  ■.  CoCn.  I  Vhm.  27. 


CH.  Xfl.] 


PRtvrLEOEg  OP  CONGRESa. 


dar  for  a  m^mlicr  of  a  city  or  boroufrh ;  and  tJiia  rate  wa«  estab- 
lishvd  in  Uk-  rvigii  of  1%dwurd  llio  Tliird.  And  we  arc-  told  that 
two  Khillings  a  day,  the  ullowflncc  to  a  biirgesK,  was  so  coniiid«rn« 
h]v  u  sum  in  thesie  niM-iont  tiinra,  that  there  are  many  iiiittances 
where  iHimiitrhs  [jctitiom-d  to  he  excused  from  ar-ndiiig  nionibera 
to  Parliantfiit,  re|>rt'8<>iitiiig  that  thi*/  wire  ongagcd  in  building 
hridg'>«  or  otli<>r  )iiiblic  works,  aiid  thi^rffore  unabin  to  bear  bo 
extraordinary  oii  exjM'uttn.'  It  is  liolicvod  that  the  practice  in 
Amiirioa  during  its  colonial  state  was,  if  not  univeraally,  at  least 
generally,  to  allow  a  compensation  to  be  paid  to  mcmlxra;  and 
the  practice  is  believed  to  he  aljaolulely  universal  nnder  the  State 
constitutions.  The  members  are  not,  however,  always  paid  mit 
of  the  public  treasurj-;  but  the  pradics  still  e\isls,  constitution- 
ally or  hj  Dsage,  in  some  of  the  States  to  char)^  tJie  amount  of 
the  coRipenaation  fixed  by  the  legislature  upon  the  constituents, 
and  levy  it-in  the  State  tax.  That  hnii  certainly  been  the  gen- 
eral course  in  the  8tatc  of  MoHftaclmsctta,  and  it  was  probably 
adopted  from  the  ancient  praclicc  in  Entiland. 

§  80S,  Wliether  it  is,  on  tho  whole,  best  to  allow  to  members 
of  Ic^islatix'e  b'Hlics  a  comfiensation  for  tlicir  8er\'ices,  or  whether 
their  service  shuiiM  lie  considered  merely  lionorury,  is  a  <piestiun 
admitting  of  much  an;umcnt  on  each  side;  and  it  has  accord- 
ingly foimd  strenuous  advocates  and  opixmcnts,  not  only  in 
speculation  but  in  practice.  It  has  been  alrejidy  seen,  ihul  in 
England,  none  is  now  allowed  or  claimed,  and  there  can  be  little 
doubt  that  publie  opinion  is  alti^ther  in  favor  of  their  present 
course.  On  the  other  hand,  in  America  an  opposite  opinion 
prevails  among  tlioae  whose  indnence  ia  most  impreasive  with 
the  (woplo  on  fiui-h  subjects.  It  is  not  surprising  that,  under 
such  ei reumstanccH,  there  should  have  boiu  a  consideniblo  diver- 
sity of  opinion  manifested  in  tho  convention  itself,  Tlie  proposi- 
tion to  allow  compensation  out  of  the  pu)>lic  tr>;si;ury  to  niembera 
of  the  IluiiHe  of  Representnlives  was  originally  c»rried  by  a  voto 
of  eight  States  against  tliree;^  and  to  the  senators  by  a  rolo  of 
seven  Htates  against  three,  one  l>eing  divided.*  At  a  subMOquent 
period,  a  motion  to  strike  out  the  payment  out  of  the  public 
treasury  was  lost  by  a  vole  of  four  States  in  the  altinnntive  and 

I  1  Bhck.  Comn.  171,  *nd  Chratiui'*  Tiotc,  SI ;  U,  PtTano  on  t  luL  S3 ;  Cton, 
Dig.  PttHiimtnl.  D.  IS. 
*  JaamUofOMnRtlca,  «7,  lie,li;.  ■  IJ.  119. 


624 


COKRTITUnOX  or  THE   tINlTBD  STATES.  [buOK  HI. 


fire  in  tlie  negative,  two  being  divided  ;>  and  the  whole  propo- 
xitiou  ft«  to  representatives  vaa  (as  amended)  lost,  by  a  rote  of 
0re  States  for  it  and  fire  against  it,  one  being  divided.^  And  as 
I  »cuator8,  a  motion  was  made  that  thej  should  be  paid  by  their 
Bpo«tive  States,  which  was  lont,  five  f>tates  voting  for  it  and 
BIX  against  it;  and  then  the  proposition  to  pay  them  out  of  the 
public  treasury  was  lost  by  a  similar  vote.*  At  a  BUbaei)Hent 
period,  a  proposition  was  reported  that  the  compcnsalitm  of  the 
members  of  both  houses  should  he  made  by  the  Stale  in  which 
tliey  were  chosen,*  and  ultimately  the  present  plan  was  agreed  to 
by  a  vote  of  nine  States  gainst  two.*  Such  a  fluctuation  of 
opinion  exhibits  in  &  strong  light  the  cmburrussing  considera- 
tions which  surrounded  tlie  8ul>jcet.^ 

§  854.  The  principal  reiiHous  in  favor  of  a  compensatioa  maj 
be  presumed  to  have  been  the  following.  In  the  first  plat^e,  the 
advantage  is  secured  of  commanding  the  first  talents  of  the  n*^ 
tion  in  the  public  councils,  by  removing  n  virtuul  dtsqualifica-l 
tion,  that  of  po%-erty,  from  that  large  cUks  of  men  who,  though 
favored  by  uature,  might  not  be  favored  by  fortune.  It  could 
hardly  he  ex[H:cted  that  such  men  would  make  the  Dece«sar 
sacrifices  in  order  to  gratify  their  ambition  for  a  pnbUo  statioa; 
and  if  they  did,  there  was  a  corresponding  danger  thut  they^ 
might  be  conijwllcd  by  tlieir  ucees^ities,  or  tempted  by  the! 
wants,  to  yield  up  their  independence,  and  perhaps  their  iot 
rity,  to  the  allurementa  of  the  corrupt  or  the  opulent.'  In  the 
next  place,  it  would,  in  a  pro)>ortioriato  degree,  gratify  the  pop- 
ular feeling  by  enlarging  the  circle  of  candidates  from  which 
mL>mbeni  might  be  chosen,  and  bringing  the  office  within  the 
reach  of  persons  in  the  middle  ranks  of  society,  although  tlioy 
might  not  possess  shining  talents, — a  course  best  suited  to  the 
funlity  found  and  promulgated  in  a  republic.  In  tho  next 
laoe,  it  would  make  a  seat  in  the  national  councils  as 
tivcy  and  perhaps  more  so,  than  in  tliose  of  liic  State,  by 
su[>erior  emolaments  of  office.  And  in  the  last  place,  it  would  lie 
in  conformity  to  a  long  and  well-settled  practice,  which  embod- 


>  Jonm.  of  Cimnntlon,  141.  *  Id.  l(t. 

•  I<L  ISO,  15L  •  Id.llO.|l(lL 

•  I.L  SSE. 

•  Sfc  VilEt'*  Minutn,  4  Rlliol'ii  D«h.  VS  t«  M. 

■•  Sm  S  ElUot'i  DcUtM,  S7S,  290 :  Yatm'»  MUiMm,  4  ElUot'a  D(K  M  to  K 


CB.  zn.] 


PUTILBOES  OF  COTCCRESft. 


026 


iod  public  Bentimciit  wid  had  been  sanctioned  by  public  ap- 
probation.' 

§  855.  On  the  other  hand,  ii  might  be,  and  it  wa*  probably, 
urmH  agiaimi  it,  that  the  practice  o(allowin|i;  coin|>cu«ation  was 
calt'iilati^  to  make  the  office  rather  more  a  matter  o(  burguin  and 
a[)eculatic>n  than  uf  hi^h  jwtitical  ambition,  it  would  operate 
aa  an  in<luccm(^nt  to  vul;^r  and  gravfilling  deniago^ce  of  little 
talent  and  narrow  muana  to  defeat  the  claims  of  higher  caiidi* 
dates  than  themaelrea,  and,  with  a  riew  to  the  con)]>ensatioa 
alone,  to  enga^  in  all  snrtx  of  corrupt  intrifniCH  to  procure  their 
own  election.  It  would  thus  detrrade  these  high  trusts  from 
being  deemed  the  reward  of  dintingniabed  merit,  and  atrictl; 
honorary,  to  a  mere  traflic  for  jwlitifal  oflic*.  which  would  first 
corrupt  tbo  pcoplo  at  the  poUa,  and  then  subject  (Itcir  libortiea 
to  be  bartered  by  their  venal  candidate  Ilea  of  talents  in  this 
way  would  be  compvlkvl  to  di'^radaliuu  in  order  to  aeqiiireoflicQ, 
or  would  bo  escludi-d  by  more  unworthy  or  more  cuuuing  candi- 
dates, who  would  foci  that  th«  laborer  was  worthy  of  his  hire. 
Thcrv  in  no  dnnjnrr  that  the  want  o(  compentiatiou  would  dctor 
men  of  suitable  tulcuts  and  virtues,  cecu  in  the  humbler  walks 
of  life,  from  becoming  ntembera,  since  it  could  scarcely  be  pre- 
sumed that  the  public  gratitude  would  not,  by  other  means,  aid 
them  in  their  private  businesa,  and  inereaae  their  just  patronage. 
And  if,  in  a  few  cases,  it  should  be  otherwise,  it  should  not  be 
forgotten  that  one  of  the  most  wbolraomc  lessons  to  be  taught  in 
republics  was,  tliat  men  should  Uiini  suitable  economy  and  pru- 
dence in  their  private  affairs,  and  that  profusion  and  poverty 
were,  wtib  a  few  splendid  excerptions,  equally  unsafe  to  be  in- 
trusted with  the  public  rights  and  intercuts,  since,  if  they  did 
not  betray,  ihey  would  hardly  be  presumt^'d  willing  to  protect 
them.  Tlie  practice  of  England  abundantly  showed  that  com- 
pensation WHS  not  necessary  to  bring  into  public  life  tJie  l>e«t 
talents  and  virtues  of  the  nation.  In  looking  over  her  list  of 
distinguished  statesmen,  of  e<|ual  purity  and  patriotism,  it  would 
be  found  that  eomiwirntivply  fi'w  had  possessed  opulenro,  and 
many  had  struggled  through  life  with  the  painful  pressure  of 
narrow  rcsotirces,  the  m  an^uttt  domi.* 

§  836.    It  does  not  become  the  commentator  to  say  whether 

>  Sm  Raw1«  on  tbf  CMMtluiie*,  eh.  IS,  p.  1T>. 
«  Ste  Ykln'*  Hinnti^  I  UUm'*  D«Ut«.  n  to  OS. 
TOt.  I.  — 40 


626 


CONSTITUTION  OP  THE   tTNITED  STATES.  [BOOK  HI. 


experience  lias  as  jet  i;iven  more  weight  to  the  former  tliiui  to 
the  lattvr  rcasonii.  Certain  it  io,  that  the  eonx'eiition,  in  odopt- 
int!  tbi- rule  of  iiHow-ing  n  c(Hnpen8«tioii,  bad  priiit-ipally  in  ricw 
thc  importance  uf  »eciiriiig  the  liigbcst  dignity  and  iiif)e|>endtii>ce 
in  the  dischai^  of  Icgialntive  functions,  and  the  justice  as  well 
a»  duty  uf  a  free  people  posaeasing  adequate  means  to  indemnify 
tJiosc  who  were  employed  in  their  Hervice  againnt  all  the  aacri- 
ficcs  incident  to  their  station.  It  has  been  juatly  oba«rred,  that 
the  principle  of  compenRation  to  those  who  render  senncca  to 
the  public  runs  through  the  whole  Constitution.' 

§  857.  If  it  be  proper  to  allow  a  compensation  for  services  to 
the  members  of  Congress,  there  seems  iho  utmost  propriety  in 
its  lieinfr  paid  out  of  the  public  treasury  of  the  United  States. 
Tlic  labor  is  for  the  bcne5t  of  the  nation,  and  it  should  pro|icrly 
be  rcmunerati^d  by  t3ie  nation.  Besides,  if  tbo  cumpensatioD 
were  to  be  allowed  by  the  States,  or  by  tlie  constittieiits  of  the 
mcmbt-rs,  if  left  to  their  discretion,  it  mij^ht  keep  the  latter  in  a 
state  of  ttlavish  dependence,  and  mi|iht  introduce  great  inequali- 
ties in  the  allovranee.  And  if  it  were  to  be  ascertained  by  Onn- 
grcsfl  and  [laid  by  the  constituents,  there  would  always  be  dangef 
that  (he  rule  would  be  fixed  to  suit  those  who  were  the  Icaat  en- 
lightened and  the  most  parsimonious,  rather  than  Ibooe  who 
acted  ujmn  a  high  sense  of  the  dignity  and  the  duties  of  the  sta- 
tion. Fortunately,  it  is  left  for  the  decision  of  Congress.  The 
eom]>ensatinn  is  "to  be  ascertained  by  law,"  and  never  addresses 
itself  to  the  pride,  or  the  parsimony,  the  local  prejudices,  or 
local  habits  of  any  part  of  the  Union.  It  is  fixed  with  a  liberal 
view  to  the  national  duties,  and  is  paid  from  the  naliomtl  purse. 
If  the  com|>en!i3tion  had  Ixten  left  to  tie  fixed  by  the  i^late  lecis- 
latnre,  the  general  goromnient  wonM  hare  become  dc|»endin]t 
upon  the  governments  of  the  States ;  and  the  latter  could  almost, 
at  their  pleasure,  have  dissolved  it'  Serious  evils  were  felt  from 
tliia  source  under  the  confederation,  by  which  each  i^tate  was  to 
maintain  its  own  delegates  in  Congresn;*  for  it  was  found  that 
the  States  too  often  were  operated  ujKyn  by  local  consideratious, 
as  contradistinguished  from  general  and  national  interests.* 

>  IU«k  OD  lU  Ctmiitalkm,  di.  IS,  p.  17S. 

■  ArtioUi*  rf  ConfDcknitMn,  ail  S. 

•  9  ElUot'a  Debttet,  S7B ;  1  KUiM't  DtUxa.  70.  H. 


CH.  xn.] 


FMVILEGES  OP  C0SGRE88. 


62T 


§  858.  Tlifi  only  practical  qyration  which  ttvcma  to  have  been 
furlJicr  open  upon  this  h«ad  is,  whether  th«  compi-iuuilian  should 
have  been  asccrtnihetl  hy  the  Const ittitiun  itsuU,  or  loft  (as  it 
now  is)  to  be  a8Rertain<!<l  from  time  to  lime  hy  Congress.'  If 
lixcd  by  the  Constitution,  it  mi^t,  from  the  change  of  th«  value 
of  money  tmd  the  nini)p»  of  lite,  become  too  low  and  utt«rly  in- 
adequate. Or  it  might  become  too  high,  in  con8«<iucncc  of  seri- 
ouK  changes  in  the  prosperity  of  the  nation.*  It  in  wiacat, 
therefore,  to  have  it  left  where  it  is,  to  be  decided  by  CoiigrcM 
from  time  t4>  time,  according  to  their  own  sense  of  justice  and  a 
large  view  of  the  national  rcsoaroea.  There  ia  no  danger  that  it 
will  over  become  excessive  without  exciting  general  discontent, 
and  tlien  it  will  noon  be  changed  from  the  reaction  of  public 
opinion.  The  danger  rather  is,  that  public  opinion  will  become 
too  Hcnaitive  ujion  this  subject  and  refuse  to  allow  any  addition 
to  what  may  bo  at  the  time  a  very  moderate  allowance.  In  the 
actual  practice  of  the  go^xrnment,  this  subject  has  rurely  been 
stirred  without  producing  riotent  excitements  at  the  elections. 
This  alone  is  sulTicicnt  to  establish  the  safety  of  the  actual  exer- 
cise of  the  power  by  the  bodi«.'«  with  wliich  it  is  lodged,  both  in 
the  State  and  national  legislatures.  >  It  is  proper,  however,  to 
add  that  the  omission  to  provide  some  constitutional  mode  of  flxi 
iug  the  puy  uf  m<!nib<.T8  of  Congress,  without  leaving  the  subject 
to  their  discretion,  formed  in  some  minda  a  strong  objoction  to 
the  Coiutilution.* 

§  S59.  I1ic  next  part  of  the  clause  regards  tlie  privilege  of  the 
mcmlfcrs  from  arrest,  except  for  criinea,  during  their  attend- 
ance at  the  sessions  of  Cnngreas,  and  their  going  to  and  nUurning 
from  them.  This  privilege  is  concealed  by  law  to  the  humblest 
suitor  and  witnesa  in  a  court  of  justice  {  and  it  would  be  strange 
indeed  if  it  were  denied  to  the  highest  functionaries  of  the  state 
in  the  discharge  of  tlieir  public  duties.  It  belongs  to  Congresg 
in  common  with  all  other  legislative  bodies  which  exist,  or  hare 
existed  in  America  since  its  first  settlement,  under  every  variety 
of  govcninient,  and  it  has  immemorially  constituted  a  privilege 
of  both  houses  of  the  British  ParliamenL*    U  seems  absolutely 

•  8m  nolA,  Pl  001.  mpra.  ■  »  BUiM't  DelMtti^  97B,  SSO,  Ul,  282. 

■  t  nUol'*  TMmtm.  TO,  Tl. 

•  Sm  Got.  ILuMlol|<h'*  I^Ur;  S  Amw.  Xu«.  «;  TO. 

■  1  lUuk.CDmiii.  mi,  IU;Coin.  Pig.  f^rHamtnt,  D.  17  ;  JeOenoii'i  Ituitul,  f  9, 
PriviUtt;  Bmyon  n.  KtvIjh,  Str  0.  Bridg.  R.  SM. 


628 


cossTmrnoN  op  the  ositbd  btates.         [book  qi. 


indi^pensatile  for  the  just  exercise  o(  the  legisUtire  po«r«r  Jo 
every  nation  purporting  to  pQ«is«&<i  a  free  constitution  of  govern* 
nient,  an<I  il  cannot  be  fnirrendcred  without  endangering  tha, 
public  liberties  as  well  as  the  private  independence  of  the 
bors.'(a) 

§  860.    This  privilejre  from  &rre«t  privileiges  them  of  oc 
against  all  procesa,  the  disoljc^lienr^  to  which  is  poniiilialile  bj^ 
attachment  of  the  person,  tinch  &a  a  gubpeena  ad  retpoHdrndum, 
aut  fattifi'-ati'Itim.  or  a  sumranna  to  aerve  on  a  jurv,  and  (as 
been  justly  observe*!)  with  reason,  becanae  a  member  has  tape*^ 
nor  duties  to  perform  in  another  place,  (h)    When  a  repreftenta- 
tivc  is  witli<ir8wn  fn>m  his  seat  by  a  summons,  the  people  whom) 
he  represents  lose  their  Toice  in  debate  and  Toto  as  they  do  io 
Ikis  voluntary  abseooe.     When  a  senator  is  withdrawn  by  Bum- 
mons,  his  State  low^  half  its  voice  in  debate  nnd  vote,  as  it  does 
in  his  voluntary  ubsenco.     The  enormous  disparity  of  the  evil 
adoiits  of  no  comparison.*    Tliv  privilcj^,  indeed,  is  dovmcd  not 
merely  the  pHvilcgo  of  tlie  meutlter  or  his  cniuitituonls,  but  th»j 
privilege  of  the  House  also.    And  every  man  must  at  his  pcTil  take 
notice  who  arc  the  members  of  the  House  returned  of  record.' 

§  861.  Ilic  privilege  of  the  peers  of  t4io  British  Parliament  to 
1)0  free  from  arrest  in  civil  casfs  is  forever  sacred  and  inviuUhle. 
For  other  pur])Oiics  (us  for  common  pnKess),  it  seems  that  their 
privilege  did  not  extend,  but  from  tlio  teste  of  tlie  summons  to 
Parliament,  and  fur  twenty  days  before  and  after  the  seasioD. 
Rut  that  period  has  now,  as  to  all  common  process  but  arreat, 
been  taken  away  by  statute.*  Tlie  privilege  of  the  mem)»er«  ai 
the  Houae  of  Commons  from  ariTst  is  for  forty  days  after  every  , 
pror(^tion,  and  for  fi>rty  days  iK'fore  the  nest  apjwinted  meet* 
ing,  which  in  effect  ia  na  long  as  the  Parliament  Issta,  it  aeldoni 
being  prorogued  for  more  than  fourscore  days  at  a  time."  In 
case  of  a  dissolution  of  Parliament  It  docs  not  upp«sur  that  the 

■  I  Kilt,  ComiD.  Lect.  U,  p.  131 ;  VMm  o.  Mwtiu.  1  D*l>.  B,  SM  ;  OoBs  i. 

Comn,  1  Mob.  11.  1. 

■  JttTenoa'i  Miniul,  |  3.  *  Id. )  3. 

*  Cmn.  Olff.  earlia-nail.  D.  IT :  1  BUek.  ComH.  ISS,  IM. 

*  1  taK\.  Comn.  MS ;  C«n.  Pig.  Fariitnfat.  U.  17. 


(«)  Sn  alM  Ootbtnf,  Iaw  uid  Pnc- 
tic«  of  l>t(i»1kUn  AuamblU*.  H  G48-M7: 
Oool'y,  CouM.  Urn.  ISt. 

(t>  Exemiitian  tttm  anwt  is  not  *io. 


kt*d  b;  tlu  ttrrita  st  dutiaou  er  dnL 
■tlotii  In  dvCI  <wm.    Gratry  *.  GnMt: 
37  Tkm.  Mt :  Cm*  p.  KvnhMkv,  15 
Hick.  fiS7. 


CH.  JUI.] 


PRITILBOES  Of  CONCKESS. 


tS2d 


privilep)  is  confined  to  onj  proclM  timo,  th«  rule  being  that  the 
purly  is  ttntltled  U>  it  (ur  tt  cunvvnii:ut  (imt>,  rtJeundo.^ 

§862.  Tho  [irivik'gc  of  niembera  uf  Pari iunivnt  formerly  ex- 
truded also  tu  Ihuir  aervaut«  aad  goods,  so  that  thvy  could  not 
be  &rr«8UMl.  But  so  far  as  it  went  to  oUttruvt  tbu  ordinary 
coorsfi  of  justice  in  tho  British  coiirt«,  it  has  since  been  ns 
stniim-d.'  In  Ihu  mi-mbers  of  Cougr«ws  tho  pnvili^  in  strictly 
personal,  nud  does  not  cxtvnd  to  their  scrvnntM  ur  properly.  It 
is  also,  in  all  cases,  oonfinod  to  a  reasonable  time,  rundo,  m*> 
rondo,  tt  ad  propria  rtdeando,  instiwd  of  being  limited  by  n  pre* 
ciM  number  of  days.  It  woa  probably  from  a  survey  of  the 
abases  of  privilc^  which  for  a  long  time  defeated  in  I^ngland 
the  purposes  of  justire,  that  tlie  Constitution  has  thua  marked  ita 
boundary  with  a  setliiiona  caution.* 

§  8^  The  efTect  of  this  privilege  ift,  that  the  arreat  of  the 
member  la  unlawful,  and  a  treitpass  ah  initio,  for  which  he  may 
maintain  an  action,  or  proceed  against  tho  aggresdor  by  way  of 
indictment.  He  may  also  be  dlsebargcd  by  motion  to  a  court  of 
jtuticc,  or  upon  a  writ  of  habeas  corput;*  and  tbe  arrest  may 
ulso  be  punished  as  a  contempt  of  the  House.' 

§  864.  In  respect  to  the  time  of  going  and  Ktuming,  the  law 
is  not  so  strict  in  point  of  time  As  to  require  the  party  to  sot  out 
immediately  on  liis  return,  but  allows  him  time  to  settle  bis 
private  ufTairs,  and  to  prepare  for  his  journey.  Nur  does  it  nicely 
Bcnn  his  road,  nor  is  his  protection  forfeited  by  a  Httlo  deviation 
fmm  llint  which  is  must  dire«t,  fur  it  is  eiippoxed  that  some 
superior  convenience  ur  nuce^ty  direeled  it.'  The  privilege  from 
arrest  taVes  place  by  force  of  Uie  election,  and  before  the  member 
has  taken  bis  seat  or  is  sworn.' 

§  805.  The  exception  to  tJie  priTilege  is,  that  it  ahnll  not  ex- 
tend to  "treason,  felony,  or  breach  of  tlMS  peace."  These  words 
are  the  same  as  those  in  which  the  exception  to  the  privilege  of 


>  Hulldsjr  r.  Pitt,  9  Sir.  R.  »Sa  i  ■.  i^.  Qu.  Ttmf.  Rard.  2S  i  1  Bhelt.  Oooiat.  ISS, 
Chtwiian'i  Note,  21  ;  Bamael  r.  Uurdmuit,  )  Krnjron,  R.  125. 

*  Com.  Dig.  l^irliatMU,  L>.  17  i  1  BUok.  Comai.  M  ;  JclTtnoa't  MkumI,  |  H 

•  JtAtMMi  lUnwl,  I  S. 

«  Jdbncn-i  Uiaul,  {  S ;  1  8tr.  990 ;  3  WiUm'*  B.  ICl ;  Ctaa.  Temp.  Hani.  SS. 

•  1  BUck.  Omom.  1S4,  lU,  166  ;  Com.  Di]t.  Partiamml,  D.  17 ;  JcAtaen'i  Uamui, 
IS. 

<  AAneo'iHamul.  |Si  2  Sir.  B.MS.  »S7. 

*  JAnwn'*  Itanul,  (3;  bat  m*  Con.  Dig. /kriimutU,  li.  IT. 


630 


CONSTITUTION  OP  THE  DNTTED  STATES.  [BOOK  in, 


Parliament  i«  usuall}-  exproiwed  at  the  coDimuu  law,  and  were 
dotihtlesA  borrowed  from  that  sourc<!.'    Now,  as  all  crime*  are 
ofTences  aguiost  tlie  pcticu,    tli«   pliruso  "brca«Ii  of  tlie   peace" 
would  accm  to  vxtond  tu  all  iiidicUblc  offeDocs,  08  well  tbu»e 
which  are  in  faot  uttviided  witli  furcc  and  violence,  an  thoM' 
which  arc  ool}*  oonatructivc  breaches  of  the  pence  of  the  govcra 
nieiit,   iniuiiniich  us  tliey  violate  its  good  order.'    And  so,  in 
truth,  it  wu»  decided  in  Pnrliiuueiit,  in  the  case  of  a  u^itioud 
libel  published  by  a  member  (Mr.  Wilkes),  against  the  oi»iuiua 
(^  Lord  Camden  and  the  other  judgett  of  the  court  of  coounoD 
pleas,* and,  aa  it  will  probably  now  be  tliought,  since  the  party' 
spirit  of  thoae  times  han  auhHided,  with  entire  good  sense  andl 
in  furtherance  of  public  justice.*     It  would  W  monstrous  that 
any  nipmbor  should  protect  himself  from  arrest  or  punishnient 
for  a  libel,  often  a  crime  of  the  deepest  malignity  and  mischief, 
while  he  would  be  liable  to  arreat  for  the  pettiest  assault  or  tfaa 
moat  insignificant  breach  of  the  peace. 

§  866.  The  next  great  and  vital  prixnlege  is  the  freedom  of 
apet'ch  and  debate,  without  which  all  other  privileges  would  bo 
comjHirativcly  unimportant  or  ineffectual'  Thia  privilege,  also, 
is  derived  from  tlie  practice  of  the  British  Parliament,  and  waa 
in  full  cwrcise  in  our  colonial  legislaturea,  and  now  belongs  to 
the  legislature  of  cvury  State  in  the  Union  as  matter  of  constitu- 
tional right  la  the  British  Parliament  it  is  a  claim  of  imme- 
morial right,  and  Is  now  further  fortified  by  an  act  of  Parliament ; 
and  it  is  always  particularly  demanded  of  the  king  in  person  hy 
the  speaker  of  the  flou.se  of  Conmions  at  the  o|)ening  of  every  new 
Parliament.*  But  this  privilege  is  striutly  confined  to  things 
done  in  the  course  of  parliamentary  proceedings,  and  does  not 
fiover  things  done  beyond  the  plaoc(<i)  and  limits  of  duly.^ 
Therefore,  although  a  speech  delivered  iu  the  Houae  of  Commons 
is  privileged,  and  the  nn'mlwr  cannot  be  ipiestinned  rea|HH^ting 
it  elsewhere^  yet,  if  he  publishes  his  8|)ewb,  and  it  contains  li- 
bellous matter,  h«  is  liable  to  an  action  and  prosecution  there- 

>  i  1n«t  SS  ;  I  Blwk.  Cemm.  1«9 ;  Com.  Dig.  Pariiamnt,  D.  17. 

•  1  Blark.  Coinni.  164.  •  Rex  v.  Wilko.  2  ViUm'%  B.  ISl. 

•  Sn  1  Blank.  Conm.  l««,  187.  *  Sec  2  Wlboii'i  Ltir  Ixct.  IM. 

•  I  BiMk.  Cmnni.  IM.  I«S.  *  tttmou'*  HuiuU,  f  3. 

(a)  Ttdi  inclwdw  wmulttB  roow  ■iwl  a.  DmiwUj,  «Q.  B.  I>.  90*  ;  Cftfliii  r.  Oaf. 
M  uilkorind  {Jkm  «f  DMeting.    QaOn     in,  I  11m&  l,  a  vsty  liupuriaut  caM. 


cu.  HI.] 


PRlrlLBOBS  OF  CONGBSSB. 


681 


for,  OH  in  common  cant-M  of  libel.' (d)     And  Uio  sainc  principles 
Bccu  applicable  to  the  privilege  of  debate  und  spuoch  in  CungreKS. 

>  TIm  Kiiigr.  CntTf,  I  llawb  awl  8tlw.  STS- 

■prahi — sBiiiniug  that  it  contuniorU 
■conniMUiitJ  with  *  bur  njioit  of  th*  pro- 
taaiingt,  —  buyond  bit  cuiittiliiwiejr  I 
Ohm  niorti  >  nienitwr'a  cuiittitiwucy  b 
ntigntoiy  put  or  lliv  yax,  ts  (ram  Jona 
till  October;  miut  the  incDibcr  vitUiDlil 
hia  ■pcediM  during  tint  litnr  for  frar  thut 
if  h«  MiiiL*  Ihcm  fu(  diatnbullunL,  ad- 
dnBed  ^ncnJly  to  tlir  ]i<i>itniu(«r  of  ft 
tamincr  fooct  of  lii>  comlitudntK.  copiM 
nuy  be  delivered  to  pcnoni  not  «if  hi* 
(littiict  ot  SlaU  t 

It  U  pUlii,  ilim,  tb>t  tmv  {oiwtMloB 

tliat  a  uicmbri  of  the  irgitlilim  uutf 
acnd  hia  apKchca  to  hji  conntitimts  ii  • 
ylRldlnR,  in  lliit  countiT,  of  the  ■bola 
ftr(i:uiu«iit  «|(alutt  pri<rilpgi>  i»  aiicli  tsaia. 
Add,  funlier,  the  existence  of  a  privilegs 
Itatlf  r<>c  the  ciiTJilalmii  of  a  apeeeh  hf 
■he  pmKoi  wlio  ni(d«  it.  ia  in  uidinarj 
cws  wamintcd  and  tDquired  bir  th<  pa* 
tnl  nil*  sitnwif  nf«iT<Ml  to,  liy  whteh 
fair  Rpofta  of  tbe  prDCHdiUga  naj  b» 
prinlrged.  "  In  ordinBt7  c**h,~  we  wf, 
(ur  pnccsUj  tbe  jirinlnl  tpMck  toattiin 
a  tiiAvtuDt  m|>tirt  of  tbt  otcaaian.  Tha 
Nal  dilKuulljr,  to  far  ai  there  >■  au;  diS- 
eulijr,  i*  vitb  Uw  tircnbtioD  nt  apntlMa 
whj^h  would  no4  bo  (irtTileged  on  tbe 
footlBi!  of  a  jioUii-atlon, «.  j[..  In  the  n«iw»> 
pa|i«n,  of  ■  Iiir  rvjiort  of  lli*  procaadlagl. 
And  in  ngaid  to  that  caio,  it  la  hatd  to 
•M  aaj  TCaaon  which  can  jtuttfjr  dimib* 
tioB  among  a  luenibrr'*  <«niiitaf«cT  idlh- 
oiil  JaMlfyinK  dfculatlon  Rvncnllj.  It  It 
bani  to  l*tUty  nlUirr.  The  trof  rale,  it  ia 
a|>|>reliBod«d,  ahoulil  be  to  jiut  tbe  cirenla- 
tiion  of  ipeecliN  thoptber  n|ion  tbe  lao4- 
(ng  of  Ur  NfMtt^  JMtlfytnit  tb«  apaalor 
only  w  h«  wottld  bt  JuaUfeed  ai  tbt  yiA- 
liaher  of  ■  Bnn|K|itr  npoHing  to  Iho 
world  tbe  proroedingi  of  tbe  legiiUtiuc. 

It  ii  BOW  loo  Utr,  bowcm  il  majr  Iibtb 
b«M  sixty  jmui  a^  to  quMllua  a  [iritl- 
Ugt  of  "Uir  rvporta;"  and  as  for  Uw 
dottnue  of  [ffinli^  itatlf,  tbat  b  fiudft* 


(ai  Thii  would  now  be  too  brvod  a 
atBlenisnt.  A  nmnbar  of  hiliainoiil  may 
ronaiuly  <imilato  Mnong  hi*  amtftfmiiXi 
•  aifeacli  made  bjr  kim  in  Puliamont. 
Waaou  r.  Waller,  L.  IL  I  Q.  R  73,  Kt ; 
DaTison  v.  Duncan,  7  El.  A  B.  US.  339. 
(For  Uie  Uw  of  England  before  Itgiilscion 
■ae  Stockdale  •.  Itannrd.  B  Ad.  i  E.  1 ; 
Wa«ou  c  Waller,  aujKno.)  Ami  It  may 
b*  doubted  whether  any  luch  qualilica- 
lion  «f  lh«  privilege  m  that  tuggeeted 
can  be  worked  in  thia  coaairy.  Prac- 
tical])', tile  qiioliJiamon  ia  crerywbtre 
Ignoied,  if  it  axiata.  Mcoiben  «f  Coo- 
grce^  If  not  of  lh«  Stale  IrgttUlarea,  act 
upon  the  miiiiNiiiliiui  tbat  the  cIrcuUlion, 
by  iheniwlvm,  of  their  apnchea  is  |;inaiut 
^h}  privileged,  and  thai  the  privilege  ia 
not  limited  in  terrilory.  And  If  luch  clr. 
eulalion  !•  privlte|[nl,  !l  cannot  b*  limitwl 
111  that  way  without  abaunl  coustNiui'iicra. 
A  nwinber  of  the  llouw  of  Rcineifntitiivea 
dclivcn  a  eprerh  there  coiilaiulug  de- 
famatory rrniviioua  u)>iiii  Mtne  one  ;  on 
llie  Drxl  day  he  it  Innnferred  to  the  Sen- 
ate, and  tlM  winiie  iponh  Cilh  the  laino 
nflectiona,  i*  dcliveted  Ibara.  MuM  tlie 
apeak**  be  riiniinad  to  lk«  puticular  dU- 
trlcl  wbiuli  be  repvaentpd  In  the  bonai, 
in  circnloling  tlie  ftnt  epeach,  while  be 
ha*  Uu  whob  Ktaio  foi  the  aeeondt 
Ajpin.  lb*  luhjKi  (d  the  nllrotiana  than- 
mIvcb  May  conotra  the  wbola  tomitr;,  aa 
in  tha  caie  of  en  imtvaclinunt ;  In  anch 
a  eaaa  ahalt  one  whv  repraaesla  a  Tery 
poor  and  degenentc  ceadituranr.  e.  g.> 
the  knirr  fmit  of  New  Y«9%  city,  have 
the  right  to  Mrevhte  Us  qitecb  there, 
when  it  will  probably  hare  no  rflacl  fur 
any  puipme,  and  be  eut  ulT  fram  ditulal. 
Ing  It  amo*^  inoni  <Blighl*ned  pcojile  T 
Again,  if  a  "  fair  lefntt*"  of  the  proceed- 
ingl  ot  the  body  may  hr  pnUUbnl  (with- 
out malinl  by  nempipers  drctilalliig 
f^nctBlty,  how  ran  it  be  that  a  meinlor  of 
that  body  tiinat   uol   einulale   hi)  own 


633 


CONSTiTCnOM   OP  THR  ITNITKD  aTAnM.  [BOOK  III. 


No  nuu)  ought  to  have  a  right  to  defame  others  uoder  color  uf  • 
lierformance  of  the  duties  of  bin  office.  And  if  be  docs  bo  in  the 
ocluul  dinchargie  of  h'm  duties  in  Congress,  that  furnishes  no  r^a- 
son  wh)'  lie  should  be  enabled,  through  the  medium  of  the  press, 
to  destroy  the  reputatian  and  invade  the  repaee  of  other  uilixcns. 
It  ibi  ncithor  within  the  acope  of  bis  duty  nor  in  furtherance  of 
public  rights  nr  jmhlic  policy.  Every  citizen  has  as  good  a  right 
to  he  protected  by  the  lanii  from  malignant  scandal  und  false 
chargea  and  defamatory  imputations,  as  •  mt-mbt-r  of  Coogreas 
has  to  utter  them  in  his  sout  If  it  were  o<bL-ru-i»e,  a  ouio's 
character  might  bo  taken  away  without  th«  puHsibilily  of  rwlreas^ 
either  by  the  muliue,  or  indiscri-tion,  cw  ovorweeuing  selfn^uiDi-it 
of  a  member  of  Cun^reDs. '  It  is  proper,  however,  to  apprise  ibe 
learued  rvadur  that  it  bus  been  receatly  insisted  in  CungiVM  by 
rery  distinguiidiod  lawyers,  that  the  privilege  of  speecb  and  de* 
bote  in  Conjt'i-i'As  duvn  oxlciid  to  piihlicatioo  of  the  sfn^eoh  of  the 
member.  A.iid  tliey  ground  ihcinselves  upon  an  imjiortant  di»- 
fcinction  arising  from  Ibo  actual  differences  between  English  and 
Ameri<:an  legiKlation.  In  the  former  the  publication  of  the  de* 
bates  is  not  strictly  lawful,  except  by  license  of  the  House.  In 
the  latter  it  is  a  common  ri^it,  exercised  and  supixtrtod  by  the 
direct  eneouragenieiit  of  the  body.  This  reasoning  deserves  • 
rery  attentive  exaininntion.* 

$  867.  The  next  clause  regards  the  disqunlifi cations  of  mem- 
bers of  Congn-as,  and  is  as  follows;  "  No  senator  or  niprttaenta- 
tive  shall,  during  the  time  for  which  be  was  ele<^tod,  be  appointed 
to  any  civil  oDice  under  the  authority  of  the  United  Statvs,  which 

I  8m  th»  TtMons  in  CoOSii  r.  Coffin,  I  Man.  R.  1. 

■  Mr.  Dod<tridgc'B  SiHMob  in  the  one  of  lloniton,  Ik  May,  183t;  Mr.  Bni^i 

SpKli,  Ibid. 


■nentkl.  Socloty  could  not  long  exiM  if 
tado  lutrm,  vlirtbtt  in  wif-pretenMn  oi 
tn  Um  di»i.'h«i^  of  Jaljr,  wtM  MM  ftf 
nlttoil.  It  if  only  ucctmmty  thut  iha 
joitUmtian  tbcntld  b«  brailnl  to  th*  rn- 
UmUc  (nguitveuenU  at  the  jMiiicuUr 
cu>  i  I  my  do  harm  to  my  nnghbor  only 
in  M  r*r  u  nay  nammilily  appear  to  b« 
n(ww»wry  in  Xht  iimhMtgt  •!  itniy  «r  in 
pnitwllng  nywlf,  toy  faajly,  or  ny 
prop'4iy. 
Tha  privilagt  la  iinintioa  it  «f  r^ane  at 


&t  kind  ttiUA  prima  filths  Itiat  K  )l 
nbaa  on  th»  fooOnit  ihal  lb*  sot  af  i 
Mn<Wr  *M  not  mlkiotu,  —  not  ikan  «.  (.J 
witb  RD  indirect  Botire  «t  vnintt  f  An  i 
nalioF  in  thu  wnia  wa  SteniH  a.  MM' ' 
laad  Ry.  0»^  10  Kx.  3G0 ;  .Vlmth  v. 
NoHlxaMara  Ry.  Co.,  II  Q.  a  D.  tlO 
450,  Itowtn,  L.  J. ;  h.  c.  II  App.  C*a. 
ftt7.)  Bat  tba  nera  MniBoui '  t^m^li  ha- 
yand  om'a  «onalitiHnf)r.  br  frout  ■•ta^ 
Ikhlnit  MoU  not  vren,  la  itaaon.  bv  a*i. 
danea  oT  MJba, 


CH.  XII.] 


rBtVtUKGKS  OP 


•liall  have  benn  crenf«d,  or  the  enioluinont«  whoreof  shutl  bave 
been  incroased,  during  such  time.  And  no  pcmun,  huldinjc;  any 
(dHce  under  the  United  States,  shall  be  a  member  of  vithor  bousQ 
of  Congrcna  during  his  continoanoe  in  olTicft."  This  claiwc  dues 
not  apjtcar  to  hav«  m<!t  with  any  opposition  in  the  convention, 
I  to  the  prt^riety  of  some  promion  on  the  subject,  tlie  priocU 
it  qfueation  beiu^  as  to  the  best  mode  of  expivtininf;  tho  disqiiali- 
(icalionji.'  It  has  tx'en  doi>nu!d  by  one  coimnviitator  an  Admirable 
proriaion  against  venality,  though  not,  perhaps,  sufficiently 
guarded  to  prevent  evasion.'  And  it  has  been  elaborately  vindi* 
cated  by  another  with  uncommon  eami>stne«s.*  The  reasons  for 
excludioK  j^n'sonB  from  officea  who  have  been  concerned  in  creat- 
ing ttivm,  or  increasing  tbeir  emolnmcnta,  are  to  take  away,  as 
far  as  possible,  uny  iuipruper  bias  in  the  vote  of  the  repreventa- 
tive,  and  to  secure  to  tliu  constituents  some  aoleron  pledge  of  bia 
disinterestedness.  The-  actual  itrovision,  howcvor,  docs  not  go 
to  tlic  extent  of  the  principle,  for  his  appointment  is  reatricted 
only  "during  the  time  for  which  he  waseleetiid,"  thiu  leaving  in 
full  for«e  crcry  influence  upon  his  mind,  if  the  ]ieriod  of  bis 
election  is  short  or  the  duration  of  it  is  approaching  its  natural 
termination.  It  bag  somotimi<s  liccn  matter  of  regret  that  the 
disqual  i Ileal  ion  bad  not  been  made  eoextensire  with  the  supposed 
mischief,  and  thus  have  forever  excluded  meml>er8  from  the  |>ob- 
eeasiun  of  ofTioes  cre-ated,  or  rendered  more  lucrative,  by  them* 
selves.*  I'erhaps  there  is  quite  as  much  wisdom  in  leaving  the 
proviaiou  where  it  now  is. 

§  868.  It  is  not  easy,  by  any  oonstituf iona)  or  legislative  en< 
aclmenta,  to  shut  out  all  or  even  many  of  the  avenues  of  undito 
or  corrupt  iiifhMViice  upon  the  human  mind.  The  great  aocuritJefl 
for  society  —  tlioae  on  which  it  must  forever  rent  in  a  freo  govern* 
ment  —  are  rpsjKiiMibility  to  the  people  through  elections,  and 
personal  character  and  purity  of  principle.  Where  lh*>*e  are 
wantJng  there  never  can  be  any  solid  conRdenee  or  any  deep 
scnM  of  duty.  Where  these  exist  they  become  a  aufiicient  gnar' 
anty  against  all  sinister  intltiences,  as  well  as  all  gmsa  ofTenoea. 
It  has  been  remarked  with  equal  profoandness  and  sagacity,  that, 


>  J«m.rfConnKti(in.ll4.31».  SIS.  SS3,  123. 

*  t  Tack.  Bliuk.  I^nntm.  App.  10)1,  214,  SIS,  ZJi. 

'  RawU  w  tha  CuMt.  eh.  19.  f.  181,  Ac. ;  1  Wilacm'*  Uw  LkL  U9  to  (IV. 

*  Bft>b  on  tke  Onnirt.  di.  IS.    See  1  Tnek.  Blult.  CiiiBiii.  App.  S7y 


6S4 


CONSTITUTION   OF  THB  DKUEO  STATIS.  [BOOK  HL 


OS  thoro  is  a  degree  of  deprarity  in  mankind  which  requires  a 
certain  degree  of  circumspection  and  (listrust,  ko  there  are  other 
qualitiet*  in  human  nature  which  justify  a  certaiu  portion  of 
teem  and  cnnlidence.  Republican  goternment  presupposes  tbe^ 
Oxistenr«  of  thefl6  qualities  in  a  higher  form  than  any  other.' 
It  might  wetl  he  deemed  harsh  to  disijualify  an  individual  from 
any  odice,  clearly  required  by  the  exigencies  of  the  Cioanlr>', 
simply  becauHe  he  had  done  his  duty.^  And,  on  the  other  hand, 
the  disqualification  might  uperate  upon  many  persons  who  might 
find  their  n-ay  into  the  naliuna)  councils,  as  a  strung  inducement 
to  postpone  the  creation  of  necessary  olliccs,  liwt  they  sliuuld 
become  riclims  of  tlieir  high  dischurgo  of  duty.  The  cbauovs  of 
receiving  an  uppuintinent  to  a  new  office  are  not  so  many  or  so 
enticing  as  to  bewilder  many  minds;  and  if  tliey  are,  the  aberra- 
tions from  duty  arc  so  easily  traced  that  they  rarely  or  oevvr  ea* 
cajie  the  public  reproaches.  And  if  influence  is  to  bo  excrt«4, 
by  the  executive  for  improper  porposes,  it  will  be  quite  as  eaay^ 
and  in  its  operation  loss  seen  and  less  suspected,  to  give  the  stip- 
ulated patronnge  in  another  form,  either  of  office  or  of  proiitablaj 
employment,  already  existing.  And  even  a  general  diaqiialifi- 
cation  might  be  evaded  by  sutTvring  the  like  patronage  silently  to 
fall  into  the  hiuids  of  a  confidential  friend,  or  a  favorite  child  or  ■ 
relative.  A  dishuaorable  trathc  in  votes,  if  it  should  ever  beconio 
the  engine  of  party  or  of  power  in  our  country,  would  never  be 
rcatraincd  by  the  slight  network  of  any  constitutional  pruviiiions 
of  this  sort;  It  would  seek  and  it  would  find  its  due  rewards  in 
the  general  patronage  of  the  government,  or  in  the  giossessiun  uf 
the  offices  conferred  by  the  people,  wliich  would  bring  emolu- 
ment fls  well  as  influence,  and  secure  |»ower  by  gratifying  favor- 
itea.  'Ilie  history  of  our  State  govemnients  (to  go  no  further) 
will  scarcely  be  thought  by  any  ingenuous  mind  to  afford  any 
proofs  that  the  absence  of  such  a  distjualilication  has  rendered 
State  legislation  less  pure  or  loss  intelligent,  or  that  the  cxistr- 
esce  of  such  a  disqualification  would  hare  retarded  one 
measure,  or  introduced  one  salutary  scruple  into  the  dements  of' 
popular  or  |>arly  strife.  History,  which  tt^uehea  us  by  eKamplcv, 
establishea  the  truth  l>eyond  all  reasonable  question,  that  genuine 
patriotism  is  too  lofty  in  its  honor,  and  too  enlightened  in  its 


t  Thx  F«>dmli«t.  Ve.  SS. 


'  S  Elliot-*  tithUM.  sn. 


ca.  XII.] 


PEtlTlLEGES  OP   C0NGBES8. 


686 


object,  to  need  Buch  checks;  and  thut  vrvaknetM  and  vice,  the 
turbulence  of  faction  and  the  nte-annvstt  of  uvarice,  are  easily 
bought,  ootwithBtanding  all  the  efforts  to  fetter  or  ensnare 
them. 

§  869.  The  other  imrt  of  the  clauae,  which  disqualifies  peniona 
holding  any  ofliec  under  thv  United  Statea  from  bein^  roomliers 
of  uilhcr  hotwu  during  Uic  conliiiuuncc  in  oflicv,  has  l>Gen  still 
inure  uuivcnuillj'  upphiuded,  and  liivi  boon  vindicated  upon  the 
highest  gnmuds  of  public  policy.  It  is  doubtless  founded  in  a 
deference  to  State  jcaloiuty,  and  a  sinwrc  desire  to  obviatv  tbo 
fean,  real  or  Jmuginury,  thai  the  general  guvemuient  vould  ol^• 
tain  au  undue  prefercnee  over  the  State  gorenuncnts.'  It  has 
also  the  strung  recommendation  that  it  prevents  any  undue  influ- 
ence from  oflice,  either  upon  the  |Nirty  hinwclf  or  (hose  with 
whom  he  is  associated  in  legislatira  deliberations,  llie  uni- 
versal exclusion  of  all  jtorsoiis  holding  ullioe  is,  it  must  be  ad- 
mitted, attended  with  some  inconveniences.  The  heads  of  the 
departments  arc,  in  fact,  thus  precluded  from  proposing  or  vin- 
dicating tlieir  own  measures  in  the  face  of  the  nation  in  (he 
course  of  debate,  and  are  con)|)elIed  to  submit  them  to  other  men, 
who  arc  either  imperfectly  ncqiuiintcd  with  the  measures,  or  are 
indifferent  to  their  succcsa  or  failure.  Tlnis,  that  open  and  pub- 
lic reaponaibility  fur  measures  which  properly  belongs  to  t3ie 
executive  in  all  guvemments,  and  especially  in  a  republican 
government,  as  its  greatest  security  and  strength,  is  completely 
done  away.  The  pxeeuti\-e  is  compelled  to  resort  to  secret  and 
unHeeii  influence,  to  private  interviews  and  pri^'atearrangemenla, 
to  accomplish  its  own  appropriate  purposes,  instead  of  proponing 
and  sustaining  its  own  duties  and  mrasurr8  by  a  bold  and  munly 
appeal  tu  Ihc  nation  in  the  face  of  its  representatives.  One  cun- 
scquooce  of  this  stale  of  things  is,  that  there  never  can  bo  traced 
home  to  the  executive  any  responsibility  for  the  mea»iirL-s  which 
are  planned  and  carried  at  its  su^^tion.  Another  cunitequcnco 
will  l>c  (if  it  has  not  yet  been),  that  measures  will  be  adopted 
or  defeated  by  private  intrigtie<i,  political  combinations,  irre- 
sponsible recommendations,  and  nil  the  blandishments  of  oSioe 
and  all  the  deadening  weight  of  silent  patronage.  The  executive 
will  never  be  compelled  to  avow  or  to  support  any  opinions.     Its 


1  8m  Rnl*  M  IIm  OMHtllntlon,  ch.  ]» ;  TU  FtdMllK,  Ke.  Sfl. 


6Sd 


CO.VSTIIUTION    OP  IHB  DSITBD  tTATES.  [BOOK  UI, 


Dunistara  may  ctmc^al  or  evade  any  exprcasion  of  Ibeir  opiniona. 
It  wilt  seem  to  follow,  wltcu  in  fact  it  dire«tB,  the  otimioDs  of 
Con^reeit.  It  will  asAiuiic  tlie  air  of  a  dopendcitt  inxtruim-nt, 
ruady  to  adopt  tlic  acta  of  ihe  legialature,  when  in  fa^t  il«  apirit 
and  ita  wiabea  pervade  the  whole  ayatein  of  kgislatann.  If  cor- 
niptioit  e\'cr  eala  its  way  silently  into  the  Tilala  of  tlii*  repulilir, 
it  will  be  becatiae  the  people  are  unatile  to  bring  res|)on«ibililr 
home  to  the  executive  through  hta  ehoaen  inini8t^.r£i.  They  will 
be  betrayed,  when  their  auaptcioua  aru  inost  lulled  by  the  execu- 
tive, nnder  the  disfniisc'  of  an  obodicDL-e  to  the  vill  of  CtHigreaa,^ 
If  it  would  not  hafe  been  aafe  to  trust  the  bcada  of  departmento, 
representatives,  to  the  choice  of  the  people,  as  tbvir  constituents, 
it  would  have  been  at  least  some  gain  to  have  allowed  Ihem  a 
wat,  like  territorial  di-legateti,  in  the  IIoiimi  of  HcprL^Mintatives, 
whore  they  might  froely  debate  without  a  title  to  vote.  In  such 
an  event  their  iulluenee,  whateror  it  wuiiM  be,  would  bo  aeeji 
and  fvit  aiid  underslwnl,  and  on  that  account  would  have  involvi 
little  danger  and  more  acarcliing  jealousy  and  opposition,  wh«rca*| 
it  ia  now  secret  and  silent,  and  from  that  very  cause  amy 
overwhelming. 

§  870.  One  other  reason  in  favor  of  such  &  right  is,  that  it 
would  compel  the  executive  to  make  appointmenta  for  the  high 
departments  of  government,  not  from  pentonat  or  party  favorites, 
bat  from  statesmen  of  high  public  character,  talents,  experience, 
and  elevated  services;  from  statesmen  who  had  mmed  public 
favor  ant)  could  command  public  confidenoe.  At  present,  gross  _ 
incapacity  may  be  eoncculvd  under  official  forms,  and  ignoraaca 
silently  eai.'npe  by  shifting  the  labors  upon  more  intelligent  sub- 
ordinates in  uffiee.  The  nation  would  )>e,  on  Ihe  otlier  plan, 
better  served;  and  the  executive  sustitinod  by  uiore  mascultne 
eloquence,  aa  well  »a  more  liberal  learning. 

§  871.  In  the  British  Parliament  no  restrictitHis  of  the  former 
sort  exist,  and  few  trf  the  latter,  except  such  as  have  been  created 
by  statute.'  It  is  true,  that  an  acceptance  of  any  office  under 
the  crown  is  a  vacation  of  a  se^tt  in  Parliament.  Tliis  is  wine, 
and  secures  the  people  from  being  betrayed  by  those  who  hold 
office  and  whom  they  do  not  dioose  to  trust.  But  generally  tbey 
ue  re-eligible,  and  are  entitled  if  the  perjpte  so  choose,  again  Ut 


t  SmI  Black.  Ccna.  105,  no. 


rKiviL>r.RS  OP 


987 


hold  a  %cai  in  the  IIou»e  of  Conunons,  ncrtwilhxtaiKling  Uieir  offi- 
cial  character.'  The  consequence  ia,  that  th«  ministers  of  the 
orown  HDftume  an  Ofwn  (Mildit-  rcafmnsibility;  anJ  if  (he  rppppscn- 
tati'm  of  the  peuplu  in  the  llouw.-  of  Cummons  wore,  as  it  ia  under 
the  national  go^Trnmont,  fuiindLvl  upon  a  uniform  rule  hy  which 
the  jK-tijiki  might  ubtuiii  thvSr  full  Hhnreof  the  government,  it 
would  be  iiupoiutiblc  for  the  niiniittr}'  tu  exercise  a  controlling 
influence,  or  cticapc  (as  iu  Auierivn  they  mu}-)  a  direct  palpable 
n'spunMibility.  There  can  be  no  danj^r  that  a  free  people  will 
not  be  suflieiently  watchful  over  their  rulcnt,  and  their  uctn,  and 
opiniuns,  when  Ihey  are  known  and  avowed;  or  that  they  will  nut 
find  re[>i-eKentative«i  in  Congreaa  ready  t«  oppose  iini>ro)>or  mcoA- 
uros  or  sound  the  alarm  upon  arbitrary  encroachments.  The  real 
danger  is  when  the  intiuence  of  the  rulers  is  at  work  In  secret, 
and  assumes  no  delinite  shape;  when  it  guides  with  a  silent  and 
irresistible  sway,  and  yet  covers  itself  under  the  fonns  of  popu- 
lar opinion  nr  independent  legislation;  when  it  does  nothing, 
and  yet  aceoniplishes  everything. 

g  872.  Such  is  the  reasoning  by  which  many  enlightened 
statesmen  have  not  only  been  led  to  doubt,  but  even  to  deny  the 
value  of  this  constitutional  disqualifieation.  And  even  tlie  most 
strenuous  iidvooalcs  of  it  are  com|>ellcd  so  far  to  admit  it«i  forc« 
as  to  concfdu  that  the  measures  of  the  executive  guvcniment,  so 
far  as  tliey  full  within  the  immediate  dejiartment  of  a  particular 
officer,  mi^ht  be  more  directly  and  fully  cxjilained  on  the  fliwr 
of  the  house,'  Stili,  however,  tlie  rpasoning  from  the  Briliidi 
practice  has  not  been  deemed  satisfactory  by  the  public;  and 
the  guard  intiTjKwi^  by  the  Constitution  has  been  received  with 
gonomi  approlwition,  and  has  been  thought  to  have  worked  well 
during  our  experience  under  the  national  government.*  Indeed, 
the  strongly  marked  parties  in  the  British  Parliament,  and  their 
consequent  disHensiona,  have  been  ascribed  to  the  non-existence 
(d  any  such  restraints;  and  the  progress  of  the  influence  of  the 
crown,  and  the  suppused  corruptions  of  legislation,  have  been  by 


■  I  RUeb.  Coiam.  17G,  I7S.  Chtbllu'*  Xot*,  Sft. 

■  Rawle  om  t]|«  CWit  ciu  IP,  p.  187. 

■  Mr.  lU*b*a  renurfc*  in  bis  trr«tu«  om  CnulilntMiiial  I«w  (ebi.  19)  m  ■*  lull  on 
thii  polot  u  no  pralitbly  In  tannd.  Sn  atto  The  f  nlnalUt.  Nth  M ;  I  Tuekn-'* 
Blnck.Camin.Apt>.  1U,214.  ai»:  2  ElUot'>I)tb«tM.27e.sr«,  190.  ISl.tn  ;  IWU- 
•m'l  1«w  Ltd.  IM  lo  U9. 


688  CONSTITDTION  OF  THE   DMIT&D  STATES.  [BOOK  ni. 

Bome  writers  traced  back  to  tlie  same  original  blemish.^  Wbetber 
these  inferences  are  bome  out  b;  historical  facts  is  a  matter  upon 
which  different  judgments  may  arrive  at  different  conclusions; 
'  and  a  work  like  the  present  is  not  the  proper  place  to  discuss 
them. 

^  1  Wibou-a  Uv  LmL  M  to  U9. 


CU.  X][l.] 


HODB  OP  PlBaiNQ  LAWS. 


«89 


CHAPTKR  XIII. 


HODB  or  PlSBlNa   LIWS.      PR3SII1I3<t'S  NEXIATITE: 


§  878.  Thb  seventh  section  of  tbe  firnt  article  treats  of  two 
imiMirtaiit  subjccta,  Hit-  ri^lit  of  orij^iiaHiig  revenue  billa,  and  the 
nature  and  extent  uf  the  President's  negative  upon  the  paesing  of 
lavs. 

§  874,  The  first  claiuc  deolarca,  "All  bills  for  raising  revenue 
Hhall  originate  in  the  Uuuso  of  Representatives,  but  the  Senate  may 
pro|MMC  or  concur  with  amendments  as  on  other  bills."  This  pro- 
vision, so  far  as  it  regards  the  right  to  originate  uliat  are  techni- 
cally called  "  money  hills,"  is,  beyond  all  quration,  burrowed  from 
the  Brittsli  Ilouse  of  Commons,  of  which  it  is  the  ancient  and  indis- 
putable privilege  and  right  that  all  grants  of  subsidies  and  parlia- 
mentary aids  shall  Ix-gin  in  their  house,  and  are  first  iMwtowcd  by 
them,  although  their  grants  are  not  efTecluat  to  alt  intents  and 
purposes  until  they  have  tile  assent  of  the  other  two  branches  of 
the  Icffislature.l  TllC  general  reason  given  for  this  privilege  of 
the  Uouse  of  Commons  is,  that  the  supplies  are  raised  u[«n  the 
body  of  tJie  people,  and  therefore  it  is  pro)K.-r  that  they  alone  should 
have  the  right  of  taxing  themselves.  And  Mr.  Justice  Blaekstono 
has  very  correctly  remarked,  that  this  reason  would  be  unututwer- 
able  if  the  Commons  ta.\ed  none  but  themselves.  But  it  is  noto- 
rious that  a  very  large  share  of  property  is  in  possession  of  the 
Lords;  that  this  proj^erty  is  equally  taxed,  us  the  property  of  the 
Commons;  and  therefore  the  Commons  not  being  the  sole  ]>er«on8 
taxed,  this  cannot  be  (he  reason  of  tlieir  having  the  sole  right  of 
raisiug  and  modelling  the  supply.  Tl>o  true  reason  seems  to  be 
thil.  The  Lords,  being  a  permanent  hereditary  body,  created  at 
pleasure  by  the  king,  arc  supposed  more  liable  to  be  influenced  by 
the  crown,  and  when  once  influenced,  moi-e  likely  to  continue  so 
than  the  Commons,  who  arc  a  temporary  elective  body,  freely 
nominated  by  the  people.  It  would,  therefore,  ho  extremely 
dangerous  to  give  the  Lords  any  power  of  framing  new  taxes 
for  tile  subject.    It  is  suQicicnt  that  they  have  a  power  of  re}c«t- 

>  1  Bluk.  C«nia.  IN. 


640 


COKSmimON  op  the   tlKlTED  STATES.  [BOOK  III. 


iDg,  if  tbcy  think  tbe  Commons  too  la%-iBh  or  improridcnt  in  their , 
grants '(a), 

§  875.  This  soems  a  very  just  account  of  (he  matter  with  r^' 
furencc  to  the  spirit  of  the  Britiah  constitution,  thou;{b  a  liUIcrent 
explanation  hiui  been  deduced  from  a  historical  reviev  of  tbe  power. 
It  ban  been  asserted  to  have  arisen  from  tbe  inetmctiuns  fmc 
time  to  time  given  by  tbf  constituents  of  tht-  Commons  (wbcther^ 
county,  city,  or  borough)  lut  to  the  rutui  and  asflesamenta  vhieh 
tbey  were  respectively  willing  to  bear  nn<l  assent  to,  and  from  the 
•ggruiiate  tt  was  cosy  for  tlic  Corammis  to  iisevrtuin'tbu  whole 
amount  which  the  commonalty  of  the  whole  kingdom  were  willing 
to  grant  to  the  king.'    lie  this  as  it  may,  so  jealous  are  the  Com>J 
nous  of  lhi8  valuable  privilege,  that  herein  they  will  not  suffer' 
the  otlier  house  to  exert  any  power  but  that  of  rejecting.     Tbey 
will  not  permit  the  least  alteration  or  amendment  to  be  made  by 
the  liordn  to  the  mode  of  taxing  the  people  by  a  money  bill;  and 
under  this  appellation  are  included  all  bills  by  which  money  \a 
directed  to  be  raiacd  u])on  the  subject  for  any  purpose,  or  in  any 
shape  whataoever,  either  for  the  exigencies  of  tlie  government,  aud 
collected  from  the  kingdom  in  general,  as  the  land  tax,  or  for 
private  benefit.,  and  collected  in  any  particular  district,  as  turn- 
pikes, (>arish  ratett,  and  the  like.'    It  is  obvious  that  this  powct, 
might  be  espalile  of  great  abuse,  if  other  bills  were  tacked  to  such' 
money  bills ;  and  accordingly  it  was  found  that  money  bills  were 
sometimes  taeki^  to  favorite  measures  of  the  Commons,  with  t 
view  to  insure  tbeir  paasuge  by  the  Lords.    This  extraordinary  use, 
or  rather  per^'creion  of  the  power  would,  if  suffered  to  grow  into 
a  common  practiee,  have  completely  destroyed  the  c«|Uilibrinm  of 
the  British  constitution,  and  subjected  both  (be  Lords  aud  tlie  king 
to  the  power  of  the  Oommous.     Rcustanoo  was  made  from  time 
to  time  to  this  unconstitutional  encroachment ;  and  at  length  the 
Lords,  with  a  view  to  give  [lerinanent  effect  to  their  own  rights, 
have  made  it  a  standing  order  to  reject  upon  sight  all  bills  that 

■  I  BUek.  Comm.  IM:  Da  Lolmr  on  Osutitatioii,  cb.  4,  S,  n>-  *^  S4,  SS,  uj 
natft 

■  I  Wnaoa'*  U«  I.ML  1«1, 1S3,  183,  cUtng  Ufllar  on  OMMlllatko,  SM.    Bttt  i 
t  WilMM**  Uw  Irfcl.  114,  145. 

•  )  Bbtk.  (>«».  170,  wd  CbitHtu't  N«U  (SSf. 

(a)  At  tb*  piTMnt  tlOM  It  It  no4  eon-     r^set  ■  msoejr  bOL    8m  Hay, ' 
cadjed  tlut  Um  Hobw  of  LMih  wtj  vvca      tioMl  Ubtorj',  tk.  J. 


en.  xm.] 


HODS  OF  PABSING   LAWS. 


641 


arc  tAck«d  to  raoaay  bills.'  Tbiw,  the  privilege  is  mainUined  on 
one  Hide  and  guarded  against  undue  abuse  on  the  other. 

§  87fi.  It  will  be  nt  once  perceived  that  tJie  same  reason*  do  not 
exiflt  in  the  same  extent  for  the  same  excliuive  right  in  our  House 
of  Representatives  in  regard  to  money  bills,  as  exist  for  such 
right  in  the  British  Unuse  of  Commons.  It  may  be  fit  that  it 
shotild  poHsesH  the  exclusive  right  to  originate  money  bills,  since 
it  may  be  presumed  to  possess  more  ample  means  of  local  infor- 
mation,  and  it  more  directly  represents  the  opininns,  feelings,  and 
wiflhcfl  of  the  peaple;  and,  being  directly  dependent  upon  them 
for  flnp[K>rt,  it  will  be  more  watchful  and  cautions  in  tlio  imposi- 
tion of  taxes  thnn  a  body  vhieh  emanates  exclusively  from  the 
States  in  their  sovereign  political  capacity.'  Bat,  as  the  scnalom 
are  in  a  just  scnso  equally  rciircacntativca  of  the  people,  and  do 
not  hold  their  offices  by  a  permanent  or  hereditary  title,  but  peri- 
odically return  to  the  common  mass  of  eilijccus;'  and  above  ull| 
as  direct  taxes  are  and  must  be  apportioned  among  the  Htates 
according  to  their  federal  population,  and  as  all  tlic  States  have  a 
distinct  local  interest,  both  as  to  the  amount  and  nature  of  all 
taxes  of  ever}'  sort  which  tiro  to  be  levied,  there  seems  n  peculiar 
titness  in  giving  to  the  Senate  a  power  to  alter  and  amend,  aa  well 
as  to  concur  with  or  reject  all  money  bills.  The  due  influence  of 
all  the  States  is  thus  preserved,  for  otherwise  it  might  happen, 
from  the  overwhelming  representation  of  some  of  the  largo  States, 
tbut  taxes  might  be  levied  which  would  bear  with  peculiar  severity 
upon  the  interccts,  either  agricultural,  commercial,  or  manufactur- 
ing, of  others,  being  the  minor  States,  and  thug  the  ciuilibrium 
Intended  by  the  Constit^ition,  as  well  of  power  as  of  interest  and 
Influence,  migiit  bo  practically  subverted. 

§  877.  There  wonld  also  be  no  small  JnconTOnienoc  in  exclud- 
ing the  Senate  from  the  exercise  of  this  power  of  amendment  and 
alternlion,  since  if  any  the  slightest  modification  were  required  in 
such  n  bill  to  make  it  either  palatable  or  just,  the  Si>nat«  would  bo 
compelled  to  reject  it,  althongh  %a  amendment  of  a  single  line 
might  make  it  entirely  acceptable  to  both  houses.*    Such  a  prac- 

1  D(  Lolme  on  Uia  OoMtitvtba,  nli.  17,  pp.  »1,  Ui. 

*  S  WilMia'*  U>  Lnc  191, 1S4  ;  IU>W  aa  CanitiNUka,  ekfl ;  4  BlUofa  DthatM, 
HI. 

■  I  Tatfctc'B  Blkck.  OMnm.  App.  SU  i  3  WilMn't  Uw  Lact.  ISS,  l«l ;  RawU  m 
CondtnliMi,  th.  <:  I  EUiM'i  IMata*.  111. 

*  %  UliM-i  Dabst**,  SSa,  SSL 
VOIL.  ■.—41 


642 


COKSTITCnOS   OP  THE  CKtTEO  SIATK8,  [ROQK  III. 


tical  obstruction  to  the  IcfrtsliLtion  of  a  free  goTomment  would  far 
outwei^  uny  Buppoe«d  t1icor«tica]  ndrttutogcs  from  th«  posseiMion 
or  exercise  of  un  exclusive  power  by  the  Hotisc  of  Re|)re»«iitatiw«. 
InJioite  perplexities  and  misuiulcrstancliiigs  aod  delays  would  dog 
the  mo«t  wholesome  legislation.  Even  the  aonuol  appropriation 
bills  might  be  in  danger  of  n  miscan-iage  on  these  accouuta,  and 
the  most  painful  dissensions  might  bo  introduced. 

§  878.  Indeed,  of  so  little  im|>ort.-moe  has  the  exclusive  pne- 
session  of  such  a  power  been  thought  in  the  State  govemmenta, 
Uiat  Homp  of  the  State  constitutions  make  no  difference  as  to  the 
power  of  each  brancli  of  the  legislature  to  originate  money  bills. 
Most  of  them  contain  a  proviaion  similar  to  that  in  the  Conslitn- 
tion  of  the  United  States ;  and  in  those  States  where  the  exclo- 
»iw  power  formerly  existed,  as,  for  instance,  in  Virginia  and 
South  Carolina,  it  was  a  constant  source  of  difficulties  and  con- 
tcntionM.'  In  the  revised  constitution  of  South  Carolina  (in 
1790),  the  provision  was  altered  bo  as  to  conform  to  the  clause 
in  the  Constitution  of  the  United  States. 

§  879.  Tlie  clause  seems  to  have  met  with  no  serious  opposU 
tion  in  any  of  the  State  conventions,  iiud  indiM^l  eould  scarcely 
be  ex])ected  to  meet  with  any  opposition  except  in  Virginia,  since 
the  other  States  were  well  satisfied  with  Ihe  principle  adopted  il 
their  own  State  constitutions,  and  in  Virginia  the  clause  create 
but  little  debate.' 

§  880.  What  bills  are  properly  "bills  for  raising  rewnuc,''  in 
the  sense  of  the  Constitution,  has  been  matter  of  some  discus- 
sion. A  learned  commentator  sn[q>oee8  that  every  bill  which  i»' 
directly  or  consequentially  may  raise  revcnui'  is,  within  thi'  seni<e 
of  the  Constitution,  a  revenue  bill.  He  therefore  thinks  that  tha^ 
bills  for  establishing  the  poat-oflice  and  the  mint,  and  regulatiuj 
the  value  of  foreign  coin,  bnlong  to  thia  class,  and  ought  not  to 
have  originated  (as  in  fact  they  did)  in  the  Senate.^  But  Ihe 
[Haetical  construction  of  the  Constitution  has  been  acain.4t  his 
opinion.  And,  indeed,  the  history  of  the  origin  of  tlie  power 
already  suggested  abundantly  proves  that  it  has  bwm  confinr-d  to 
bills  to  levy  taxes  in  the  strict  sense  of  the  words,  and  has  not 
been  understood  to  extend  to  bills  for  other  purpoees,  which  laay 


I  a  Eltiot'i  IMata^  3SS,  184. 

■  1  Tucker'*  BImL  Ooiun.  App.  ttl,  anil  mtc 


*  Ibid. 


PRBSIDENI'S  NBGATITB. 


643 


^ 
^ 

^ 
^ 


^ 


incidentally  create  rcvcnuc.*{ii)  No  one  supposea  tliat  «  bill  to 
8cU  any  of  tlie  public  luids,  or  to  mil  public  stock,  is  a  bill  to 
raise  tvrenuc,  in  tliv  sciiae  of  tlie  Const i tut ioo.  Much  leut  n-ould 
a  bill  bo  no  docini^d  wbicli  merely  regulated  the  value  of  foreign 
or  doiuLMilic  coins,  or  niithorixed  a  discbai^  of  insolvent  debtors 
upon  ossigtunents  of  their  estates  to  the  Uuited  States,  giving  a 
priority  of  payment  to  the  United  i^tatt-s  in  cases  of  insolvency, 
althongh  all  of  them  might  incidentally  bring  revenue  into  tiie 
treasury. 

§  881.  The  next  elaiisft  rwippotfl  the  power  of  the  President  to 
a[q>rovc  and  negative  Inwa.  In  tho  convention  tltero  does  not 
seem  fc>  have  been  much  di^'ersity  of  opinion  on  the  subject  of  the 
pmpricty  of  giving  to  the  President  a  negative  on  the  laws.  The 
principal  points  of  discussion  seem  to  hare  been,  whether  the  neg> 
atire  should  be  absolute  or  qoaliGcd;  and  if  the  latter,  by  what 
number  of  cacti  bouse  the  bill  aboTild  sulmiMiitenlly  \)v  ]iassed,  in 
order  to  become  u  law;  and  whether  the  uegalive  should  in  either 
case  be  exclusively  rested  in  the  President  alone,  or  in  him 
jointly  vitli  some  other  department  of  the  government  llic 
proposition  of  a  qiialiried  negative  seems  to  have  ol)tained  gen* 
eral,  but  not  universal  support,  having  been  carried  by  tho  vote 

)  8«  BUM'S  D«l»l««,  SS3,  SS4. 


I 


(a)  Dm*  nptalisg  duties  it  lua  btcn 
cbinMd  bjr  tb*  CaMmora  In  P>rtiun«n^ 
an  BMUey  bUU  vbiuh  tb*  Uaatt  of  Lonli 
niMt  nM  Ol-lgilinu^  tmuii,  m  njecl.  Sm 
Hajr,  CbnaUtulioiMl  HittOTT,  cb.  7.  Thit 
gmcnl  Ht^tct  WB  Mnwwbat  dijcimcd  in 
Ctaignm  \%  Ui*  jMr  1873. 

Tb>  49d  CoDgno  How  |WMd  •  ttil 
"to  i«p«*l  aiirtfag  datiM  on  tM  ind 
Mifcft"  Tba  Scott*  aihilitiiled  In  It  ■ 
Ull  oantklnlng  •  g«n«nl  rtMih^  ndiM- 
Iton,  tad  nfMtl  <4  Itwi  fMpoting  im- 
|Htt  dMJM  hhI  iat«nwl  taxt^  tnd  teat 
tlw  tabtttutcd  tail  to  tht  Hoott  fix  ow- 
tmttuea.  Tba  Hon**  ntolvid  thU  tbit 
Mhttiluttoa  irat  "  (n  conlKd  vilb  tbe 
tmt  'meal  tiuj  porptMo  <i  tlktt  cImb  of 
tbr  CouMitiitian  wbjch  rH|DinM  tbal  ttl 
Ulli  ttm  taialogi  renniiB  tbtll  originat*  is 
Ik*  HuoM  of  R«fn«nt«tlm,"  tnd  tlinv- 
fai*  oldvrad  it  to  lie  «a  tba  tabb^  Tbn 
Scaato  thtwupaai  n/arcd  tba  tat|jf«t  1» 


itt  CunmittM  on  rri*i]s(M  Mid  FieclJoiu, 
who  RTNrtad  thM  Ih*  Kout*  bill  "wa 
not  t  bill  for  raising  nranar  witbia  tb* 
DManisg  of  UiB  CMiititaEion,  uid  tlior*, 
Ultr,  >biln  tlie  SoDate  migbt  have  anxodnl 
it  M  u  lo  abolUi  dutit*  iJliificihpr  uina 
iMft  trUc)**.  th*  Sratt*  b»j  do  ri|[ht  to 
ingraft  u|i0n  it,  •■  it  dM  is  wMaan,  aa 
f  iwilft  pnTiding  Dwt  Pmana  ibaald 
be  ooUrctnl  upon  olbor  artida,  tbon^  at 
a  Im  nit  ihaii  pravlaiulr  fli*d  by  law. 
Tbat  taMttdmui  tratild  htva  bemac  a 
proviMon  ID  111*  A«t  fci  laiiuig  nftnaa^ 
lw«aiUN  lannat  at  a  errtrdn  rata  woald 
liav*  b*Mt  Mlbrtai)  t^  lb*  «p«nliMi  of 
III*  Act."  Ilia  n^rt  wn  ailoiilnl  tra 
the  Smal^  bni  tli*  nutgoct  did  not  ^jaia 
go  htlalc  tb*  HouM  m  ai  to  aSord  Ofipor- 
tunity  for  aanrlalning  nhatbfr  it«  vlava 
aad  tboM  of  tha  S«Mta  were  or  von  art 
in  all  partknlan  «atlnly  In  acvcnd.    C. 


644 


cossTiTTrnoN  or  the  cmted  states.         [book  m. 


of  cigbt  States  against  two.*  lliis  bein^  nettled,  the  qnesUoo  u 
to  tlie  number  wa«  at  first  unanimoosli-  carried  in  the  affirmative 
in  favor  of  two-thirds  of  each  house;  at  a  Bubsequent  period  it 
was  altered  to  three-fourtha  by  a  vote  of  aix  States  against  four, 
one  being  divided;  and  it  was  ultimately  restored  to  the  two- 
thirds,  without  any  apparent  struggle.*  An  effort  was  also 
made  to  unite  the  supreme  national  judiciary  with  the  execatdrc 
in  revising  the  laws  and  exercisini;  the  negative.  But  it  wa« 
constHUtly  resisted,  being  at  first  overruled  by  a  vote  of  four 
Slutcs  against  thrtx,  two  bcio^  divided,  and  finally  rejected  by 
tliu  vote  of  eigtit  States  against  throe.* 

§  ^2.  Two  points  may  properly  arise  upon  this  subject  ^irst, 
the  propriety  of  vesting  the  power  in  the  President;  and,  sec- 
ondly, the  extent  of  the  l<^slatirc  check  to  prefeut  an  undue  ex- 
orcise of  it  The  former  a1«o  admits  of  a  double  aspect,  namely, 
whether  the  negative  should  be  absolute  or  should  be  qualified. 
An  absolute  negative  on  the  legislature  appears,  at  first,  to  be 
the  natural  defence  with  which  the  executive  magistrate  should 
be  arnit^d.  But  in  a  free  government  it  seems  not  altogether  safe 
nor  of  itself  a  suflicient  defence.  On  ordinary  occasions  it  may 
not  be  exerted  with  the  requisite  firmness;  and  on  extrsordinarf 
oocanionA,  it  may  be  perfidiously  abused.  It  is  true,  that  llie 
defect  of  such  an  absolute  negative  has  a  tendency  to  weaken  the 
executive  department  But  this  may  be  obviated,  or  at  least 
coimterpoiBcd,  by  other  arrangements  in  the  government  such  ns 
a  qiiaiiliod  connection  with  the  Senata  in  making  treaties  and 
appointments,  by  which  the  latter,  being  a  stronger  department, 
may  be  led  to  8up)>or1  the  conittitutiunal  rights  of  the  fonnei^ 
without  biting  too  uiAch  detached  from  its  own  legislative  funo^ 
tioni).*  And  the  patronage  of  the  executive  has  also  some  teiH 
dency  to  create  a  counteracting  influence  in  aidiof  its  inde{: 
ence.  ft  is  true  that  in  England  an  alisolute  negative  is 
in  the  king,  as  a  branch  of  the  legislative  power;  and  he 
sesses  the  absolute  power  of  rejecting  rather  than  of  resolvini;. 
And  this  is  thought  by  Mr.  Justice  Blaekatonc  and  others  to  bo 
a  most  important,  and  indeed  indispensable  part  of  the  royal 

'  Jonrai]  of  th«  CotmatiaB^  97. 

*  Imntl  of  tiM  CNiVMiltoa.  IVS,  tS*,  SU,  85S. 

*  JoDnMl  of  Um  CoDTwtlw, «,  H,  IVS,  U». 

*  TU  r«l«n1i>t.  So.  a. 


CH.  xm.] 


PUKajDENT  S  HEOaTITB. 


646 


w 


prerogntivc,  (o  ^utrd  sgniiut  ttic  tiHurpittiotM  of  tiie  legifllativc 
authorit;^. '  Yet  iu  poiut  of  fact  tliix  aogutivo  of  the  king  has  not 
bc«D  once  exercised  siiico  the  year  lC92,'(a)  a  fsct  which  can 
only  be  accounted]  for  upon  one  of  two  sappoeitionts  either  that 
the  inilueuce  of  the  crown  has  prcventoi)  the  pastiago  of  objec- 
tionable meaaures,  or  that  the  exerciae  of  the  prerogatiTe  has 
become  so  odious  that  it  has  not  bei>n  deemed  safe  to  exorciae  it 
except  upon  the  most  pressing  emei^ncies.*  Pmbabl;  uutfa  mo- 
tirca  have  alternately  prevailed  in  regard  to  bills  which  were 
disagreeable  to  the  crown;*  though,  for  the  last  half-century,  the 
latter  has  had  the  muet  uniform  an*!  decisive  ojx'ratiou.  As  the 
House*  of  Cumnioiis  becomes  more  and  more  the  repn'Montatire  of 
the  popular  opiujou,  the  crown  will  hare  less  and  lc«s  induce* 
ment  to  hazard  its  own  inllnencc  by  a  rejection  of  any  favorite 
measure  of  the  people.  It  will  be  more  likely  to  take  the  lead, 
and  thus  guide  and  moderate,  instead  of  resisting,  the  Commooo. 
And  practit:ally  speaking,  it  is  quite  problematical  whether  a 
(jualitied  negative  may  not  hereafter  in  Kiiglnnd  become  a  more 
efficient  protectitm  of  the  crown  than  an  absolute  negative,  which 
makes  no  appeal  to  the  other  legislative  bodies,  and  cooseqacntly 

■  1  Black.  ConiM.  IM. 

■  Uc  LoUm  «b  CuiulilatioD.  ok.  IT,  pp.  SW,  S»l  ;  1  Kent'i  Oini*.  LmL  U, 
P.2M. 

*  1  WlbM't  Uir  Lmi.  i4S,  44S  ;  Th«  F*d«niUn.  tfo.  n ;  H.  Ifo.  «0  ;  1  RtM** 
Connt.  LmLII,  p.  lEW.  Mr.  Enrk*.  in  U>  btur  U  tiio  AeriS* of  Bttotol  (b  i;77). 
hu  tnaUd  ikii  sabject  with  lib  naatl  mMtarly  pawn.  "Th«  king**  *cf^ti<rc  to 
bitli,"  uyi  hp,  "uKuicof  Ui«nM*t  aMdbp«l«(l(pf  tbt  rojal  pncagativw ;  ■lulUeitFiid* 
to  ill  cuw  obaUocTct.  I  Ht  far  fn»  ocfUia  tlut  tr  aomnl  Uin.  wbkli  I  know,  bad 
fftlln  Biidct  Um  itrakc  «f  thtt  vqitttv  tlwt  tb*  pabUo  woald .  havs  had  •  ttrj  liMvy 
\<m.  Hat  it  U  not  Iho  proptMy  «f  tha  cawMlaa  whkk  ia  1«  quaaban.  TIm  «mnlat 
itatir  ■•  •i)»l]r  rortBTiie.  Il«  NpM*  ma;  tc  lli«  ptMarvatinn  of  ita  tnUltrne* ;  »mI  Ua 
MtiaUnca  M17  be  tb«  jnaana  of  MTing  tha  Conatitullon  itadl^  on  an  osoaaion  wortlij  «( 
WiBflac  It  ()>»)■.'-(*) 

*  iTock.  Bluk.  CMau.  ApfiL  2SG,  K«;  1  K*tit-«CVMiiM.  LccL  11.  p.  tM. 


(a)  It  WM  OBM  MMwiaid  hj  <}«•««■ 
Anne  in  ITOT.    C. 

ft)  It  nia;  ba  aoMMiatad  ftir  p*rfiapa  In 
anallwr  <nf.  By  lb*  tliMTjr  «f  tbe  Bril- 
JA  OMMtilutkm,  aa  now  arttM.  tb«  al»- 
Iali7  ii»dar  fHam  adrlea  the  king  acta 
Uiud  b«  In  ward  with  tka  najoritj  in 
the  Hainw  of  ('anira«n%  a»d  poa«oi>  It* 
ttmlliUMc;  aadwbdunriUTaUadMnen' 
that  thtf  ^<*  I"**  til**  tttMrnet, 


tlMT  miul  (ithsr  naiga  «t  ba  dlnnimtd, 
or  iIm;  mnal  advUe  •  dk»ol«tian  <4  tha 
Parllanunl  with  aviaw  toaii  aiipol  tolh* 
pmpla.  ro«ti«niptIi>iT«ain|>i>i'>ratciiini4 
adreiaa  wte*  is  the  OiMnnoai  wooLl  of  it> 
mV  ba  npwdad  m  aneonatiuitional ;  atill 
mora  mail  il  be  ki  to  altnnpt  to  wotrol 
that  iMtlocity  ibreoHW  th*  rojntl  t«Io.  Hh 
Todd,  PkH.  0«r.  I-  40  i  Cooloy-B  BUck- 
Mooo,  L  M<,not«b 


646 


CONSTITDTION  OF  THE  UKITKD  ETATEft.  [BOOK  III. 


compt-U  the  crown  to  bear  the  exclnsive  odiom  of  a  rejection. ' 
Bo  this  as  it  may,  the  example  of  England  funiiithra,  on  tlit« 
point,  no  sufficient  authority  for  America.  The  whole  stnirturc 
of  our  gOTcrnment  ia  &o  entirely  different,  and  the  e!cm<>ntA  of 
which  it  ia  composed  arc  so  distiimilar  from  that  of  England, 
that  no  argument  can  be  druwn  from  tho  practice  of  the  latter  to 
assist  UB  in  a  just  arrwugomout  of  tho  executive  authorily. 

§  883.  It  has  bet-n  olMtTVcd  by  TAr.  Chancellor  Kent,  with 
pithy  elcgimcc,  that  the  peremptory  veto  of  the  Roman  tribunes, 
who  were  placed  at  the  door  of  the  Roman  senate,  would  not  Iw 
recoueiluble  with  the  spirit  of  deliberation  and  indv[^K:'udcnc«> 
which  distinguishes  tho  councils  of  modem  tim«s.  The  French 
constitution  of  ITfll,  a  labored  and  costly  fabric  on  which  the 
phi losophei-s  and  statesmen  of  Franco  exhausted  all  their  inge- 
nuity, and  which  was  prostrated  in  the  dust  in  the  course  of  oa« 
year  from  its  existence,  gave  to  the  king  a  negative  upon  the 
act«  of  the  legislature  witlt  some  feeble  limitations.  Every  bill 
was  to  be  presented  to  the  king,  who  might  refuse  his  aasent; 
but  if  the  two  following  legislatures  should  aneeessively  present 
the  same  bill  in  the  same  terms,  it  was  theu  to  become  a  law. 
The  conatitutional  negative  given  to  the  President  of  the  United 
States  appears  to  be  more  wisely  digested  than  any  of  the  exam- 
ples which  have  been  mentioned.* 

§  884.  The  reasons  why  the  President  should  possess  a  quali- 
fied negative,  if  they  are  not  cjuite  ol)vioii!i,  are  at  leaat,  when 
fairly  expounded,  entirely  satisfactory.  In  the  first  place,  there 
is  a  natural  tendency  in  the  legislative  department  to  intmde 
upon  the  rights  and  to  absorb  the  powers  of  tlw  other  depart- 
ments of  govenuncnt.'  A  mere  parchment  delineation  of  tho 
boundaries  of  each  is  wholly  lUiiufKcioat  for  the  protection  of  the 
weaker  branch,  as  the  exc«utive  unquestionably  is,  and  beuoc 
there  arises  a  constitutional  neceaaity  of  arming  it  with  powers 
for  its  own  defence.  If  the  executive  did  not  potwcss  this  quali- 
fied negative,  it  might  gradually  be  stripped  of  all  its  authority, 
and  become,  what  tt  is  well  known  the  govemura  of  sutno  States 
are.  a  mere  pageant  and  shadow  of  magistracy.* 

1  Stc  till*  nWDnins  in  The  Fedtmliat,  N&  TS  t  Id.  Ho.  U  i  1  WOwn'*  Uw  I.Mt. 
4  IS.  Ut. 

*  1  KcniV  Oonwa.  Lett.  II,  i>|x  «M,  »T. 
■  I  Kitiii'ii  Coaiin.  Lfct.  II.  fp.  £!5.  S3«  ;  Tlie  F«dnBlbt,  Ko.  n-.  Id.  Ko.  Itl. 

*  Tlio  I'V'I'rrslitt,  Xm.  G1.  73;  1  Taak.  Black,  OMsm.  Ap|L  US,  »!ta  ;  I  WUmm'i 
Uw  Lt«t.  <4S,  U9  i  1  Etat'*  Couun.  L««t.  1],  pp.  S£S,  £31 


CH.  XIII.] 


PBBSIDEKT'S  NEGATtTE. 


647 


§  8S5.  In  tltti  next  place,  Uic  power  ift  importaut  as  aa  ftddi* 
ti<nial  security  Kgniiut  tlie  cDactmcnt  of  m^h,  iintnature,  and 
i]npru{M.T  lun-«.  It  cfllalMislies  a  salutary  check  u]>on  Utc  legin- 
latirc  bod}',  calculated  to  preserve  the  community  against  tlio 
cITccta  of  faction^  precipitane/,  unconsitiitional  legifllation,  and 
t^»i[Hirary  excitemcntH,  aa  well  an  political  bofitility.'  It  may 
indeed  l*e  aaid  that  a  ninglo  man,  ercn  though  he  bo  Prcaideut, 
cannot  be  pi-esumed  to  posaesa  more  wisdom  or  virtue  ur  expe- 
rience than  what  l>elongH  to  a  number  of  men.  Gut  this  fur- 
nishen  no  anawer  to  tlie  reasoning.  Tho  question  is  not  how 
much  wisdom  or  virtue  or  experience  is  possofitH-^l  by  either 
branch  of  the  government  (tiiough  the  executive  magistrucjr  may 
well  be  prt'sumod  to  bo  eminently  distinguishtMl  in  all  tiicso  re- 
spects, and  therefore  the  choice  of  tlic  jjcoplc),  but  whether  the 
legislature  may  not  be  laisled  by  a  tore  uf  power,  a  spirit  of  fac' 
tion,  a  ])olitioul  impulse,  or  a  jwrsuosive  inllucucc,  local  or  ecc- 
tional,  which  at  the  same  lime  may  not,  frt)n)  the  difTercnce  ia 
the  election  and  duties  of  the  executive,  reach  him  at  all,  or  not 
reach  him  in  tJic  same  degree.  He  will  always  have  a  primary 
inducement  to  defend  hia  own  powers;  the  trgiftlatiire  may  well 
be  prcsuuK'd  to  have  no  desire  to  favor  them.  He  will  have  aa 
opportunity  »')1)orly  to  examine  the  acts  and  resolutions  pasaed 
by  tht!  legislature,  not  having  partaken  of  the  feelings  or  oombi* 
nations  which  have  procured  their  paasage,  and  thus  correct 
what  shall  sometimes  t>e  wrong  from  haste  and  inadvertence  as 
Kfill  aa  design.*    llis  view  of  them,  if  not  more  wiso  or  more 

Bvated,  will  at  least  be  indejtendent,  and  under  an  entirely 
lifferent  resiKtnsibility  to  tho  nation  from  what  I*elonga  to  tlicm. 
Uo  is  the  representative  of  the  whole  nation  in  the  aggregate; 
they  are  the  leprcscotativcs  only  of  distinct  {tarts;  and  some- 
times of  little  more  than  sectional  or  local  intcriTstA. 

§  886.  Nor  is  there  any  solid  objection  to  this  qualified  power.' 
If  it  should  be  objected  that  it  nmy  sometimca  prevent  the  pas- 
sage of  good  laws  as  well  us  of  bad  laws,  the  ohjocliuu  is  en- 
titled to  but  little  weiglit.  In  the  first  place,  it  can  never  be 
effectually  exercised  if  two-thirds  of  both  houses  arc  in  favor  of 
the  law,  and  if  they  are  not  it  is  not  so  easily  demonstrable  that 

>  Th«  r^]tmlit^  Ho.  n ;  I  Wlbon  •  Uw  ImL  iiS,  MB,  4&a 

•  Tile  Fhknilirt.  Ho.  79. 

•  1  Tack.  BLuk.  Ccwni.  221,  321 ;  1  Knt'*  Coiiun.  t>rt.  11,  pf>,  S2S,  SM. 


648 


C0N8T1T0TI0N   Ot  THE  PNITED  STATES.  {BOOK  tO. 


the  lav  is  either  wise  or  salutary.    The  prvsiimption  would  rather 
be  the  other  my;  or  ut  )i»st  that  ihe  ulility  of  it  was  not  un- 
questiuDuljlo,  or  it  would  roct-iro  the  requisite  support.      In  the 
liext  place,  tbo  great  evil  uf  all  free  guvuniiDcnta  U  a  t«iidency 
to  over-leirislatioD,  ajid  the  mischief  of  iucotutancy  and  mntabil- 
itjr  iu  the  laws  (lynua  a  great  bleuiish  in  the  character  and  f^iiius 
of  all  free  gox'eninients. '     The  injury  whioh  may  pnsail>ly  ariM 
from  the  ^stjxjiteineut  of  a  salutary  law  is  far  less  thau  from  thai 
passage  of  a  inischiei'Ous  one,  or  from  a  redundant  and  vacillate 
tng  le^lation.*     In  the  next  place,  there  is  no  practical  danj^r 
that  this  power  would  be  much,  if  any,  abuaed  l>y  the  Preciident. 
The  superior  weight  and  influence  of  the  legislative  body  in  a^ 
free  ii^rernmcnt,  and  the  hazard  to  the  weight  and  inSuence  of 
the  executive  in  a  trial  of  strength,  aSnrd  a  satisfaetory  security 
that  the  power  will  generally  be  employed  with  great  caatioo, 
and  that  there  will  be  more  often  room  for  a  charge  trf  timidity 
than  of  rashness  in  its  exercise.'    It  has  been  already  seen  that 
the  British  king,  with  all  his  sorcreign  attributes,  has  rarely  in- 
tetpoBcd  this  high  preregntht;,  and  that  mure  than  a  century  has  , 
elapsed  since  its  uctunl  upplieutiua.     If  from  the  ufTcusive  natvra' 
of  the  power  u  royal  hereditary  executive  thus  indulges  serion* 
scruples  in  ita  actual  exorcise,  surely  a  republican  president, 
chosen  for  four  years,  may  bo  presumed  to  be  still  more  unwilling 
to  exert  it;* 

§  887.  Tlic  truth  is,  as  has  been  already  hinted,  that  the  real , 
danger  is  that  the  executive  will  use  the  power  too  rarely.  Ha 
will  do  it  only  on  extraordinary  occasions,  when  a  just  regard  to 
the  public  safety,  or  public  interests,  or  a  const itutional  obliga- 
tion, or  a  necessity  of  maintainiug  the  appropriate  righta  and 
prerogatives  of  his  ollioe  compels  him  to  the  step;"  and  then  it 
will  be  a  solemn  appeal  to  the  people  themselves  from  their  own 
representatives.  Even  witliin  these  narrow  limits  the  power  is 
highly  valuable,  and  it  will  silently  operate  as  a  preventive 
check,  by  discouraging  attempts  to  overawe  or  to  control  the  ex- 
ecutive. Indeed,  one  of  the  greatest  benefits  of  such  a  power  is, 
that  its  influence  is  felt  not  so  much  In  its  actual  exercise  as 
in  its  silent  and  secret  energy  aa  a  preventive.  It  checks  the 
intention  to  usurp  before  it  has  ripened  into  an  act 


■  Tha  Fcdenlwt.  Ko.  TS. 


*  IbiiL 


*  ibM. 

*  Ibid. 


PRn]DEKT*8  NBOATIVE. 


«40 


§  888.  It  has  this  additional  rooommeiidation,  aa  a  qualified 
negative,  that  it  docs  not,  like  an  abBolute  negative,  present  a 
eategorivat  and  harsh  resistance  to  the  legislative  will,  which  is 
80  apt  to  engender  Htrifc  and  noumh  hostility.  It  aaauinm  tlie 
character  of  a  m«rtt  uppcal  to  the  legiHlatnro  itself,  aud  aaks  a 
revision  of  its  own  judfrmwit'  It  is  in  the  nature,  then,  merely 
of  a  rt-heariiiB  or  u  rcouuHidcrution,  and  involves  nothing  to 
provoke  resentment  ur  rouse  pride.  A  President  who  miitht  hen- 
itatc  to  defeat  a  law  hy  un  absotute  veto  might  feel  little  scruple 
to  return  it  for  rccunsideratiun  upon  reasons  and  arguments  sug- 
gesU-d  uu  the  return.  If  thoiu>  were  mitisfaetory  to  th<!  legisla- 
ture, he  would  hare  the  ehecrinf^  support  (tf  a  respectable  portion 
of  the  l>od,v  in  jiiBtification  of  his  conduct.  If,  on  the  other  hand, 
thejr  should  not  be  satisfHCturv,  the  concurrence  of  two-thirds 
would  seeurc  the  ultimate  passage  of  tltc  law  without  ex|>o«iiig 
him  to  undue  censure  or  reproach.  Even  in  each  cases  his  op- 
positiou  would  not  be  without  some  benclit  His  observations 
would  be  calculated  to  excite  public  attention  and  discussion, 
to  lay  bare  tlie  gmundit  and  policy  and  constitutionality  of  meas* 
urea,*  and  to  create  a  continued  wat<;hfulnes«  aa  to  the  practical 
effect  of  the  laws  thus  passed,  so  as  that  it  might  be  ascertained 
by  experience  whether  his  sagacity  and  judgment  were  safer  than 
that  of  the  legislature.*(<i)  Nothing  but  a.  gross  abuse  of  the 
power  M|ion  frivolons  or  party  pretencea  to  w^ure  a  petty  tri- 
■pnpfa  or  to  defeat  a  wholesome  restraint  would  bring  it  into  con- 
-^mpt  or  o«)iuni;  and  then  it  would  soon  be  followed  by  that 
remedial  justice  from  the  people  in  the  exercise  of  the  right  of 
election,  which,  first  or  last,  will  be  found  to  follow  with  reproof 
or  cheer  witli  applause  the  acts  of  their  rulers  when  pnssion  and 
prejudice  have  removed  the  temporary  bandages  which  have 
blinded  their  judgment.     Looking  back  upon  the  history  of  the 

>  Tte  FedonlitI,  Ko.  T3.  *  KnvU  on  titt  Connitvtloa,  <^.  «,  pp.  01,  43. 

*  Wlno't  Uw  LccL  I49v  4S0  ;  Tbs  F«d«talMt,  Ko.  TS. 


In  lh«  sdmiButntkau  of  Prm>UnU  Tj^Ur 
nti  JobMon.  Hid  durint;  Iha  vtule  of 
tb*  fenuvr,  (iniwnant  lagialaliM  wn  coo- 
Uollwi  )iy  inMtit  llwnof.  Sam*  fttt«DBpt 
wu  maila  to  abolidi  th*  poim  uniUr  llin 
fctlinf  wccitBd.bui  ItdiiliuitBwMwUliuy 
Ttfjr  deddcd  bmr.    Mi.  D*vii,  darfiv 


Uw  nJrtaiio*  at  Iht  Canbd«nt*  Bbtim 
gortnmtnl,  U  mJ<1  to  luva  Mnploffd  tb« 
rrta  pawn  wiUi  gn^t  fiocdotn,  uid  to 
tun  exokmhI  bjr  th>t  mmiu  «  oontralUnit 
Mitluirily  in  thnCoiiKT*M  nn  all  Isiportuit 
iDMNrN.    Foote'i  W*r  of  Ik*  RtbriliiM, 


650 


CONSTtTOnOS   OP  THK   DKI7ED  STATES.  [BOOK  HI. 


gQveromcnt  for  tlio  laitt  fort;  yeara,  it  will  be  found  tliut  tliu 
President's  ucgativo  baa  been  nirel;r  exertod;  *nd  wheuevvr  it 
hug  been,  no  iii8Unc«  (it  is  )>e1ievei))  has  occurred  in  whicb  the 
«ct  has  been  concurred  in  by  two-thirds  of  both  houses.  If  the 
public  opinion  has  not  in  ail  eases  sustained  thia  exercise  of 
the  veto,  it  may  be  aHinnod  that  it  baa  rarety  been  fouud  that 
the  disapprobation  has  been  violent  or  unfiiialitied. 

§  881>.  The  proposition  to  unite  the  Supreme  Court  n-itb  the 
executive  in  the  revision  and  qualified  rejection  of  lairs  failed,  as 
has  been  seen,  in  tlie  convention.'  Two  reasons  seeni  to  have 
led  to  this  result,  and  probably  were  felt  by  the  people  also  as  of 
decisive  weight.  Tlie  one  was,  that  the  judges,  who  are  tbe 
interpreters  of  the  law,  might  n>ceivo  an  improper  bios  from 
liHvini;  given  a  previous  opinion  in  tlioir  revisory  capacity.  Tite 
other  waa,  that  the  judges,  by  being  often  aasociatod  with  the 
executive,  might  be  induced  to  embark  too  far  in  the  political 
views  of  that  magistrate;  and  thus  a  dangerous  coutbiuutioD 
might,  by  degrees,  be  cemented  Wtwccn  the  executive  and  judi- 
ciary departments.  It  is  impoHsiblc  to  keep  the  judges  too  dis^ 
tinel  from  any  uthur  avocation  than  that  of  expounding  the  laws] 
and  it  is  jieculiarly  dangerous  to  place  them  in  a  situation  to  be 
either  coi'ruptcd  or  influenced  by  the  executive.'  To  tticse  may  be 
added  another,  which  may  almost  be  deemed  a  corollary  from 
them,  that  it  would  have  a  tendency  to  take  from  the  judges  that 
public  oonHdunco  in  their  ini{>!krtiality,  indL-pond(>n«',  and  inte|i 
rity  which  M.'cni  iudispeusuble  to  the  due  udaiiuititrutimi  of  puli 
lie  justice.  Wliatcver  has  a  tendency  to  create  Buspicion  or 
provoke  jealousy  is  mischievous  to  the  judicial  department 
Judges  should  not  only  ite  pure,  but  be  believed  to  bo  so.  Tbo 
moral  intlueiicc  of  their  judgments  is  vcakcncdt  if  not  destroyi-d, 
whenever  there  is  a  general,  even  though  it  be  *ji  nnfoundM, 
distrust  that  they  are  guided  by  other  motives  In  tlie  diiM'harge 
of  their  duties  than  the  law  and  the  testimony.  A  free  people 
havf  no  Hocurity  for  their  li))erties  when  an  ap)<eal  to  the  judicial 
department  becomes  either  illusory  or  questionable.' (u) 

»  JoarwJ  of  CoDTBntlon.  195,  ilS.  »  The  F*drniUtt.  Ko.  78. 

*  It  U  •  nMftikaU*  circuniBiancv  in  llio  hiatoiy  of  Ur.  JtStno*'*  optniMu,  Uui  tw 

|«|  la  the  Kev  York  Mimdl  of  r*-     court  nvn  MMdatad  wilh  His  Bnrmnr] 
ruaon  imdn  tbt  fin*  coaatitntion.  tbo     but    It    did    not    prave    ■ 
chanwilor  «m1  jnatioM  «t  tba  rajntsie     wruigcaictit. 


CB.  xin.] 


PHESIDENTS  KBOATIVe. 


651 


§  890.  The  other  point  of  inquiry  in,  as  to  (lio  extent  of  the 
legUUtivo  vliock  upun  the  iicgutivc  of  thi.-  executive-.  It  has  biiin 
ama  that  ft  wm  origiually  proixwcd  thiit «  cuncurrouoe  of  two- 
thinln  uf  caoh  house  should  he  required,  thnt  t)iia  wus  Aubae- 
quvntly  alteivd  to  three-foitrths,  wid  was  finally  brought  back 
in  to  the  original  number.*  One  reason  ugninxt  the  thrce- 
r<jiirthi«  BCi-iits  to  have  been  tJiat  it  woolil  aflfnrd  little  nwrurity 
for  any  efTwIual  exercise  of  th*>  jxtwer.  The  larger  tlio  nutuber 
required  to  overrule  the  eswutivo  negatire,  th©  more  easy  it 

;wou1d  be  for  him  to  exert  a  flilent  and  secret  influence  to  dvtacli 
he  requisite  numlier  in  nnler  to  carry  hia  ol>ject.  Another  rea- 
son was,  that,  even  suppooing  no  such  influence  to  be  exerted, 
still,  in  a  great  variety  of  cuHett  of  a  politieal  natuit?,  and  espe- 
cially such  as  touched  IocaI  or  sectional  intereats,  the  pride  or  the 
power  of  States,  it  would  be  eaay  to  defeat  tbo  most  aaltitar}- 
meimurea,  if  a  combinution  of  a  few  States  could  produce  sueh  a 
result.  And  the  executive  himself  might,  from  his  local  attach- 
ments or  81-etional  feelings,  pnHakc  of  this  coiamoii  bias.  In 
addition  to  this,  the  degiarture  from  tlie  general  rule  uf  the  right 
of  a  majority  to  govern  ought  not  to  be  allowed  but  upon  tlie 

Imoat  urgent  occasions;  and  an  expression  uf  opinion  by  two- 
thirds  of  both  houses  in  fnvor  of  a  measure  ccrtJunly  alTorded  all 
tlie  just  securities  whieh  any  wise  or  prudent  people  ou};ht  to  de- 
mand in  the  ordinary  course  of  legislation;  for  all  laws  thus 
passed  might,  at  any  time,  l)e  re)(ealcd  at  the  mere  will  uf  tlio 
majority.      It  was  also  no  small  recommendation  of  tlie  lesser 

'number,  that  it  offered  fewer  inducements  to  improjier  coiu)>ina- 
tions,  either  of  tlie  great  States  or  the  small  States,  to  occom- 
jlish  particular  objects.  There  could  l>o  Imt  one  of  two  rules 
loptcd  in  all  governments,  either  that  the  majority  slutuld  gov- 
ern or  the  minority  should  govern.     Tbfl  Prcaideiit  might  bo 

■ehonen  by  a  bare  majority  of  electoral  vott^s,  and  this  mnjortty 
tight  he  by  the  combination  of  a  few  large  States  and  by  n  mi- 
nority of  the  whole  people.  Under  such  circuntatances,  if  a  vote 
of  throe-fourths  were  required  to  pass  a  law,  the  voice  of  two- 


WM  draddtlj  in  bror  of  •MociMtbig  th*  jia^iauy  «ith  Ubi'  Dxeeutin)  lu  tii«  txtmhi  ol 
tbt  ortgatire  on  lair*.  «r  oC  inroiU^  it  tepmnttir  with  a  dinilar  pumr.     1  JtCMiwa'* 
Connp.  3<  4 ;  3  Pitk.  S83.    At  •  nitM)|amt  |»ria4  Ut  oftiuoii  iwjwcUjw  tin*  viIm 
*nil  lin|>orUu«  latm*  to  havt  iwdeisona  cxtnonliRruj  chaa^w, 
>  Juunul  of  tbc  OoanuUaR.  ff.  KO,  lOS.  tCI,  SM. 


652 


coKSTrrunON  Of  the  united  states.  [book  m. 


thirds  of  the  Statea  and  two-thirds  of  tho  people  might  be  per- 
moiiontl;  diaregardcd  during  a  whole  administration.  The  csae^ 
put  may  serm  strong;  but  it  is  not  strotif^r  ttiuo  thv  HU{ipo6itioii, 
that  two-thirds  of  both  hounes  would  be  fo<ind  ready  Ut  butray  the 
solid  intercsta  of  th«ir  cotiatituents  by  the  passage  of  injurious  or-l 
uncoHRtitiitional  law«.  The  provision,  therefore,  as  it  stands, 
affurda  all  reasonable  security;  and,  pressed  further,  it  would 
Gudanger  th«  very  objects  for  which  it  is  introduced  into  the 
OonstitutiuiL 

§  891.  But  tli«  President  might  effectually  defeat  the  whole- 
some restraint,  thus  intended,  upon  his  qualified  nugatire,  if  be 
might  silently  decline  to  act  after  a  bill  was  presented  to  him  for 
approval  or  rejection.  The  Constitution,  therefore,  luis  wisely 
provided,  that,  "it  any  bill  shall  not  be  returned  by  (lie  Presi- 
dent within  ten  days  (Sundays  excepted)  after  it  shall  have  beeo 
preaeuted  to  him,  it  Hhall  be  a  law,  in  like  manner  as  if  he  had 
signed  it  "'(a)  Hut  if  this  clause  Stood  alone.  Congress  might, 
in  like  manner,  defeat  the  due  exercise  of  bin  qualilied  negative 
by  a  termination  of  the  sofwion,  which  would  render  it  impossi- 
ble for  thf  President  to  return  the  bill.  It  is  therefore  added, 
"  unless  the  Congress,  by  their  adjournment,  prevent  its  retom, 
in  which  cose  it  shall  not  be  a  law.'* 

§  892.  The  remaining  clause  merely  applies  to  ordert,  rrtolu' 
tieti*,  and  voIm,  to  which  the  concurrence  of  both  houses  may  be 
Dcocssary ;  and  as  to  these,  with  a  single  exception,  the  same 
rule  is  applied  as  is  by  the  preceding  clause  applied  to  &i7/«.  If 
Uiis  provision  had  not  been  made,  Congress,  by  adopting  the 
form  of  an  order  or  resolution,  instead  of  a  bill,  might  have 


>  The  original  propoillkiii  in  tlio  con rtutiaa  iru,  that  lb*UU*bonU  boNUnad  hf 
tha  PmliU&l  ill  mpm  lUya-     ll  wu  >iiitdi>|iiKiiily  alurril  tv  Ira  ilsjr*  bj  ft  ml«  «C  mitM  , 
gtatM  ■pln«t  two.     JoariMl  of  Counntiuii,  330,  SSI,  iSS. 


(a)  It  ho*  born  Ud  that  tho  ttnu 
■pecifled  will  Indaila  lUyt  an  >hlch  tho 
li|C<iJaMni  U  not  In  muIou,  it  it  bw  not 
tlnat\j  tdjauntti.  Ojiioioot  or  Jnitice*, 
4S  N.  H.  <07.  Bat  tho  daj  of  pnwntiug 
tlio  UU  (ot  affnnl  (hould  ba  ncdiuM. 
Ibid.  Vfhtn  m  tho  Unth  iaj  tlio  p>r- 
imor  •mt  •  bill  «Ilh  ht*  oli^wtiuDs  to  th« 
hnuo  «ilh  which  il  ori^nattd,  btrt  the 
anger,  &iili^thobouohadft4)oniMd 


tw  tho  dfty,  MtDTDod  it  to  tbo  gAvmar.  - 
who  ntatnod  it,  U  waa  li«l<I  that,  to  ft** 
Tont  the  tdU  boooming  ■  law,  it  iImiiM 
have  bom  left  with  tlw  ]irD|ar  oMotr  of 
the  house  lutttad  of  hilaf  rwtainod  bjr  tbi 
govmior.  HiT|<eii(liiif  e.  Uaiglit,  3S  CaL 
169.  Aa  to  >hni  u)  approT*!  la  Ui  bo 
dtonwd  totBpble,  wa  Poopla  a,  Uatdi, 
19  m,  S83.  I 


CH.  XIII.] 


PSBBIDEKT'8   NEGATTTE: 


668 


effectually  defoatM  th«  President's  qualified  negative  in  all  the 
most  importunt  portioiw  of  lugislation. ' 

§  893.  It  has  becu  rcirutrkod  by  Ih;  Lolmc,  thnt  in  most  of  the 
anoii-nt  free  Htotos,  tlie  share  of  the  people  in  tliv  biuiness  of  lo- 
git«lation  wM  to  npprove  or  reject  the  propositioiM  which  wore 
itiailc  to  Utein,  and  to  give  the  final  sanction  U>  the  law-K.  Tlte 
fuiiclioiis  of  those  persons,  or  in  general  those  bodies  who  were 
intnmted  with  the  executive  power,  were  to  prepare  and  frame 
the  laws,  and  then  to  propose  them  to  the  pcc^le.  In  a  word, 
thej  pwisessed  that  branch  of  the  legislative  power  which  ma/ 
bo  called  the  initiative,  that  is,  the  prcn^tivc  of  putting  tliat 
power  into  action.  In  the  first  times  of  the  Roman  republic,  this 
initistive  power  was  ooostantiy  exercised  hy  the  Roman  senate. 
Iaws  were  made  popuii  Jwmu,  «c  avthoritaU  tenati;  and,  even 
in  elections,  the  candidates  were  subject  to  the  previous  appro* 
bation  of  the  senate.  In  modern  times,  in  the  ropablics  of  Ven- 
ice, Ilerne,  and  Genera,  the  same  power  is,  in  fact,  exercised  by 
a  select  assembly  before  it  can  be  acted  upon  by  the  larger  aa- 
scmlily  of  the  citizcua,  or  their  representatives,'  De  Lolme  has 
added  that  this  power  is  very  useful,  and  perhaps  even  necessary, 
in  states  orf  a  republican  form,  for  giving  a  permanenc«  to  the 
laws,  as  well  as  for  preventing  political  disorders  and  struggles 
for  power.  At  the  same  time,  he  is  compelled  to  admit  that 
this  expedient  is  attended  witli  inconveniences  of  little  less  mag- 
nitude than  the  evils  it  is  meant  to  remedy.*  The  inconveniences 
are  certainly  great,  but  there  arc  evils  of  a  deeper  character  be- 
longing b>  such  a  system.  The  natural,  nay,  necessary  tendency 
of  it  is,  ultimately  to  concentrate  all  power  in  the  initiative  body, 
and  to  leave  to  the  approving  liody  )>ut  the  shadow  of  authority. 
It  is  in  fact,  though  itot  in  form,  an  oligarchy.  And,  so  far 
from  its  l>eing  asefut  in  a  rcpablic,  it  is  the  surest  means  of  sap- 
ping all  its  bc«t  institntinns,  and  overthrowing  the  public  liber- 
ties, by  corrupting  the  very  fountains  of  legislation.  De  Lolme 
praises  it  as  a  peculiar  excellence  of  the  British  monarchy. 
America,  no  less,  vindicates  it  8S  a  fondamontal  principle  in 
all  her  republican  const ilut ions, 

§  9&i.    We  have  thus  passed  throngh  all  the  clauses  of  the 

'  Jevmal  of  ContentMiii,  n-  *^  ^^• 

■  D«  Utipc,  Ej«.  Com*  a  9,  «k.  i,  p.  934,  aad  aott. 

•  Dc  Loime,  Knff.  ConiL  B.  3,  ch.  4,  p.  Si,  uul  aMe. 


654 


CON)?riTUTIOK  OP  THE   tIKlTBD  STATES.  [UOOK  III. 


CoofttitutioD  respecting  tho  structure  and  orgaiuKaiion  of  the 
li^slative  department,  and  the  riglitii,  powerg,  and  privileges  of 
the  component  branL-ben  scrcrallj',  (m  woll  as  in  tlie  ntr^rcgnti-. 
Tlie  natural  ordor  of  Uiu  Cuiistitutiou  next  IcadK  us  to  Ihu  uun- 
Btdei-ation  of  the  powbrs  which  are  vested,  by  the  Constitutiou, 
ID  tJie  legislative  dopaitnient.  Before,  however,  entering  upou 
this  Eai)^  and  important  inquiiy,  it  maj  tie  useful  to  state,  in  a 
sunininry  manner,  the  ordinary  coarse  of  proceedings  at  each 
uw  st-»»inn  of  Congress,  and  the  mode  in  which  the  laws  arv 
usually  pasaed,  according  to  the  settled  usages  in  Congress, 
tnider  the  rules  and  orders  of  tho  two  houses.  In  substance,  it 
does  not  differ  from  tho  manner  of  ctMidueting  the  like  business 
in  ttw  British  Parliament.' 

§  895.  On  lite  day  appointed  for  tho  assembling  of  a  new  Con- 
gress, the  aierobors  of  each  house  meet  in  their  separate  apart- 
ments. Tho  flotise  of  Kopresentatives  then  proceed  to  the  choice 
of  A  speaker  and  clerk;  and  any  one  memlier  is  auUiuriKcd  then 
to  administer  the  oath  of  oflwe  to  t>K'  speaker,  who  then  admin- 
isters tho  like  oath  to  the  other  members  and  to  the  clerk.  Tho 
like  iialh  Is  administered  by  any  mt^'mber  of  the  Senate  to  the 
presideut  o(  t)ie  Senate,  who  then  admiuisturs  a  like  oath  to  all 
the  inendH-rs  and  the  secretary  of  tlie  Scuate;  and  this  procc 
ing  is  had,  when  and  as  oftoo  as  a  new  president  of  the  $eaat«y1 
or  meml>cr,  or  secretary,  is  chosca'  As  soon  as  these  prelimi- 
naries are  gone  tlirough,  and  n  <)tioriim  of  each  house  is  present 
notice  is  given  thereof  to  the  President,  who  signifies  his  intea-^ 
tlon  to  address  them,  lliis  was  (ormerly  done  by  way  of  speech, 
hot  is  now  done  by  a  writti>n  message,  tnuumittod  to  each  he 
containing  a  general  exposition  of  tlie  affairs  uf  the  natiuo, 
a  recommendation  of  such  measures  as  the  President  may  df 
fit  for  the  consideration  of  Congress.  When  the  habit  was  fur 
the  President  to  make  a  speerh,  it  was  in  the  prc«eiioe  of  both^ 
bouses:  and  a  written  answer  was  prepared  l>y  each  bonw,  whicli 
when  accepted,  was  presented  by  a  committee.  At  prwent,  no 
answer  whatsoever  is  given  to  the  eontent^  of  the  mransgr 
this  change  of  procoeding  has  been  thought,  by  many  sCatesmavl 
to  bo  a  change  for  the  wotso;  since  the  answer  of  each  bouK  oh 


>  1  Tm^.  Blktk.  Omm.  i|ip.  iaa,  M*:  i  Bk^ 
rutim :  1  ira«aa^  Urn  Uot.  171  to  in 


Wl; 


*  Act  of  ITSIk  «k  L 


CH.  xm.] 


FROCEBDINOS  OP  C0N0BEE8. 


655 


»bled  ench  party  in  the  Icgittlaturo  to  express  its  <nm  xievra  m  to 
tho  mattcra  ill  the  »iM7Cch,  and  to  propose  by  vray  of  smondment 
to  the  uiswer  whatever  was  dcomtMl  more  correct  and  more  ex- 
presdire  of  pablic  scntimeat  than  wus  contaiiie'd  in  vitbcr.  The 
consequence  was,  thut  the  wliole  policy  uud  conduct  of  the  ad- 
ministration came  under  solemn  review ;  and  it  was  animadverted 
on,  or  defended,  with  e*jual  zcul  mid  indcju-ndeiice,  according 
to  the  diff<;reiit  views  of  the  spcnkers  in  the  debate;  und  the  final 
vote  showed  tlie  exact  Mate  of  public  opinion  on  all  leading 
measures.  By  the  projtent  practice  of  mesiiagcs,  this  facile  and 
concentrated  oppnrtunity  of  attack  or  defence  is  completely  taken 
away;  and  tho  attack  or  defence  of  the  adraiiiistraliOD  is  perpet- 
ually  renewed,  at  diRtaQt  intervals,  as  an  incidental  topic  in  nil 
other  diaciistiions,  to  which  it  often  hears  very  alight,  and,  per- 
hape,  no  relation.  The  result  is,  that  a  great  deal  of  lime  is 
lost  in  collateral  dcliatcs,  und  that  the  administration  ia  driven 
to  defend  itself  lo  detail,  on  every  leading  motion  or  measure  of 
the  session. ' 

§  896,  A  hill  may  bo  introduced  by  motion  of  a  member  and 
leave  of  the  house ;  or  it  may  be  introduced  by  order  of  tiie  hoiiac, 
on  tho  report  of  a  c»mmitte<e ;  or  it  may  be  reported  by  a  com- 
mittee. In  coses  of  a  general  nature,  one  day's  notice  is  given 
of  a  motion  to  briujr  in  o  bill  The  bill,  however  introduced,  is 
drawn  out  on  paper,  with  a  multitude  of  blanks,  or  void  spaces, 
where  anything  occurs  that  is  dubious,  or  nccesaary  to  be  settled 
by  the  house :  sucli,  especially,  as  dntos  of  times,  sums  of  money, 
amount  of  {xrimltic-s,  and  limitations  of  numlK-rs.  It  is  then  read 
a  first  time,  for  information;  and,  if  any  opposition  is  made  to 
it,  (he  ({nestion  is  then  put,  whether  it  shall  be  rejected.  If  no 
opposition  is  made,  or  if  the  iptestion  to  reject  ia  negatived,  the 
bill  goes  to  a  second  rending  without  a  qurntion,  and  it  ia  accord* 
ingly  read  a  second  time  at  some  convenient  distance  of  time. 
Every  bill  miisl  receive  three  readings  in  the  house  pri'vious  to 
its  passage;  and  these  readinga  are  on  different  days,  unlcM 
upon  ft  special  order  of  the  house  to  the  contrary.  Upon  the 
second  reading  of  a  bill,  the  spi-aker  states  it  as  ready  for  com- 
mitment or  engrossment     If  committed,  it  ia  committed  either 

>  llniln'  Fmi(I«Bt  WMliinglMi  uil  PnitdBnt  J«1ib  AJmd*  tlie  ptarUc*  «m  to  d»- 
]iTcr  spcodK*.  Pfwidtat  Jttenem  diioMrtiancil  UiU  oonnM,  lad  Mb«titiited  mMMgw ; 
tad  tkU  fnctJM  bai  bsca  doca  inTuiftUj  loUoirML 


656 


ooKsnnrnoK  or  thi:  uxited  statis.         fuooK  m. 


to  ft  0Oleot  or  a  standing  committee,  or  to  a  committee  of  tbe 
whole  house.     If  to  the  latter,  tho  bouM  determine  on  what  dav. 
If  the  bill  is  ordered  to  bo  engroned  (that  i»,  coptitl  mit  in  a 
fair,  large,  round  hand),  the  huuao  then  appoint  the  day  wh^n  it 
shall  be  road  the  third  time.     Uo0t  of  tho  important  bills  are 
committed  to  a  eommiltue  of  the  whole  hou8«;  and  every  motit 
or  pro|)odiUon  for  a  tax  or  eliarge  upon  tiie  people,  and  for  a  i-a-^ 
riatioR  in  the  som  or  quantum  of  a  tax  or  duty,  aiid  for  an  appro- 
priation of  money,  lii  required  firet  to  be  discussed  in  a  committee 
of  the  whole  hoitse.     The  great  object  of  referring  any  nuttier  to . 
a  committee  of  the  whole  bouse  ia,  to  allow  a  greater  freedon 
of  di»cu9.<(ioR,  and  more  times  of  speaking,  tlian  in  generally  al* 
lowed  by  the  rules  of  the  house.    It  aeems,  too,  that  ttin  yeas  onlj 
nays  are  not  required  to  bo  taken  upon  votes  in  coraiuittee, 
tliey  may  be  in  ^otes  in  the  house. 

§  897.  On  going  into  a  committes  of  the  whole  honse  the 
speaker  leaves  tbe  chair,  and  a  chairman  is  appointed  by  him  to 
preside  in  committee.  Amendments  and  other  procLtodintiis  are 
had  in  committee,  much  in  Ibe  same  way  as  occur  in  the  n>jrularj 
course  of  tho  business  of  the  house.  Select  and  standing  com-' 
mittces  regulate  their  own  times  and  modes  of  proceeding  acoord- 
ing  to  their  own  dispretion  and  pleasure,  unless  otherwise  ordered 
by  the  houso.  They  make  their  reports  in  the  same  way,  from 
time  to  time,  to  the  house,  and  secure  the  directions  of  tho  lat- 
ter. When  a  bill  is  eommitted  to  a  committee,  it  is  read  in  srv- 
tiona;  paragraph  after  paragraph  is  debated;  blanks  are  filled 
ap;  and  alterations  and  amendments,  both  in  form  and  sub- 
stance,  are  proposed  and  often  made. 

§  t[D8.  After  tlie  committee  have  gone  throngh  with  the  whole 
bill,  they  report  it,  with  all  the  alterations  and  amendmenta 
made  in  it,  to  tlio  bouse.  It  is  then,  or  at  some  snitable  (ir 
aftcrwunlit,  considered  by  the  latter,  and  the  question  iiejiaraleljr^ 
pnt  upon  every  alteration,  amendment,  and  clause.  After  com* 
mitment  and  report  to  the  house,  and  at  any  time  Iwforo  its 
sage,  any  bill  may  be  recommitted  nt  the  pleuAore  of  tlie  boose 
When  a  bill,  either  upon  a  rejwrt  of  committee  or  after  full  dia 
cussion  and  amendment  in  the  house,  stands  for  the  nest  stai^ 
of  its  progress,  tho  question  then  is,  whether  it  sliall  be  en- 
grossed and  read  a  third  time.  And  this  is  tho  profier  timi;, 
commonly  chosen  by  those  who  are  fundamentally  c^iposcd  to  i^ 


en.  xin.] 


PROCBEDIKCS  OP  COXGRBSa. 


637 


to  make  their  attack  upon  it,  it  now  ))cinf;  as  perfect  m  !ta  fricnOs 
can  shape  it,  ami  as  little  exceptionable  as  its  ciioniivs  have  bocn 
able  to  mnlce  it.  Atleinpts  are,  indeed,  soni«lim«s  inado  at  pre- 
vions  sta^s  to  defeat  it,  hut  they  are  usually  disjointed  ufFurls; 
because  many  peraona  who  do  not  expect  to  he  in  favor  of  the 
bill  ultimately,  are  willing  to  let  it  go  on  to  its  most  perfect 
state,  to  take  time  to  examine  it  fur  theouielTea,  and  to  hear  what 
eon  be  said  in  its  favor. 

§  899.  The  two  last  stages  of  the  bill,  namely,  on  the  ques- 
tions, whether  it  xhall  have  a  third  readinff,  and  whether  it  Hhall 
pass,  are  the  struti);  pi>iiitii  of  reBiHtancfi  and  defence.  The  first 
is  usually  the  most  interesting  contest,  because  the  subject  i» 
more  new  and  cni^i;ing,  and  the  trial  of  utrength  hiis  not  been 
made;  so  that  the  strugtclc  for  victory  is  yet  wholly  doubtful, 
and  the  ardor  of  dcbuto  is  proportional  ly  warm  and  enniest  If 
the  bill  is  ordered  to  be  enjmissed  for  n  third  rcadinj^,  it  is, 
when  engrossed,  pot  upon  its  final  passage.  Amendments  anj 
Bometimos  made  to  it  at  this  stage,  thotigh  reluctantly;  and  any 
new  clause,  tlius  added,  is  called  a  rider.  If  the  role  is  that  the 
bill  sliail  pass,  the  title  is  then  settled,  though  a  title  is  always 
reported  with  the  bill;  and  that  being  agreed  to,  the  day  of  its 
passage  is  noted  at  the  foot  of  it  by  the  clerk.  It  is  then  signed 
by  the  siMmker,  and  transmitted  to  the  other  lioitsc  for  concur- 
rence tlierein. 

{  900.  The  bill,  when  tJius  transmitted  to  the  other  house, 
goes  throngh  similar  forms.  It  is  either  rejected,  committed, 
or  concurred  in,  with  or  without  amendments.  If  a  hill  is 
amended  by  the  house  to  which  it  is  tnuisniittetl,  it  is  then  re- 
turned to  the  other  house,  in  which  it  oiiifinatod,  for  their  as- 
sent  to  the  amendment  If  tJio  aiuendmcut  is  atrreed  to,  tJie  fact 
is  made  known  to  the  other  honsa  li  not  agreed  to,  the  disa- 
greement 19  in  like  manner  notified.  And  the  like  courHc  is 
adopted,  where  the  amendment  is  agreed  to  with  an  amendment 
In  either  of  these  cases,  the  house  proposing  tJio  amendment 
may  recede  from  it.  or  may  adopt  it  with  tJie  amendment  pro- 
posed by  the  other  house.  If  neither  is  done,  tlic  house  then 
vote  to  insist  on  tlw)  amendment  or  to  adhere  to  It  A  rote  to 
insist  ko<.-|K<  the  i|ue8lton  still  open.  But  a  rote  to  adhere  re- 
quires Uic  other  bouse  either  to  insist  or  to  recede;  for  if,  OR 
their  part,  there  is  a  vote  to  odbcre,  the  bill  usually  falls  without 
VOL.1.— 42 


658 


CONSnTDTION   OP  THB  USTTTBD 


[book  m. 


furUior  effort.  But,  upon  a  disagreemont  between  tbe  two  bouses, 
a  ccmfcrcnfic  by  a  committee  of  each  is  UBiially  asked;  and  id 
this  itiAimcr  the  mattere  in  controversy  are  generally  adjiislcil  by 
U'lu()(ing  the  course  ret^onmifinded  br  the  conunittees,  or  one  i4 
them.  When  a  bill  has  patwed  both  houiws,  the  house  last  acting 
on  it  makes  known  its  passajp!  to  the  other,  and  it  is  delivered 
to  the  joint  committco  of  enroUnont,  who  see  that  tt  is  truly  en- 
rolled in  parchment,  and,  being  signed  by  tbe  speaker  of  tbe 
house  and  the  president  of  tho  senate,  it  is  then  sent  to  the  Prvs- 
idont  fur  his  signatuni.  If  he  approves  it,  he  signs  it ;  and  it  is 
then  deposited  among  the  rolls  in  the  ofhco  of  the  dvpartmeDt  uf 
state.  If  he  disapproves  of  it,  he  ret<inis  it  to  the  house  in  whivjl 
it  or)ginnt«d,  with  his  objections.  Here  they  arc  entered  at  large 
on  the  joiimttl,  and  afterwords  the  house  proceed  to  a  cuusidcr»- 
tion  of  them.' 

§  901.  This  rci-iow  of  the  forms  and  modes  of  procet-dtng  in 
the  passing  of  laws  cannot  fail  to  impre^  ujion  every  mind  Uio 
cautions  steps  by  which  legislation  is  guarded,  and  the  solici- 
tnde  to  conduct  business  without  precipitancy,  rashness,  or  irr 
utarity.  Frequent  opportunities  are  afforded  to  each  bousu 
review  their  on-n  proceedings;  to  amend  their  own  erruni;  to 
correct  their  own  iuadvortencii's;  to  recover  from  the  results  of 
any  pms^ionnle  excitement;  and  to  reoon^ider  the  voti.>s  to  which 
peraiuisivc  eloqucncfi  or  party  spirit  has  occasionally  misled  their 
judcmcnts.  Under  such  circnraatances,  if  legislation  1a'  unwii-e 
or  loose  or  inaccurate,  it  lielonfrs  to  tlie  infinnity  of  human  na- 
ture in  general,  or  to  that  personal  carelessness  and  indifTor 
which  is  sometimes  the  foible  of  genius  as  well  as  the  accom- 
paniment of  ignorance  and  prejudice. 

§  902.   Tbe  structure  and  orgauixation  of  the  several  branet 
composing  tho  legislature  have  also  (milcss  my  jut^ient  ba 
misled   me)  !>oen  shown  by  the  past  review   to   be   admirably' 
adapted  to  preserve  a  wholesome  and  upright  exorcise  of  Ibeir 
powers.     All  the  ehccks  which  human  ingenuity  has  been  abie  to 
devise  (at  leasts  all  which,  with  reference  tu  our  habits,  tnstitii* 
tiona,  and  local  interests,  seemed  practicable  or  desirable)  to  git 

>  TUi  Mmnur;  b  ■b4tr>cl«l  ttma  I  Bbck.  Coam.  181,  IBS :  1  Tntlnr'a  tUuk. 
Coinnu  A|>i>.  2-2ii,  ZM.  iioU  ;  1  Ktni,  Coinm.  Lcot.  II,  fp.  SIS,  S£t ;  S  Wilton't  Ij,« 
Ln*.  ITI,  ITS;  ITS  ;  IUi>W  on  lli"  Oonttituiion,  eli.  6,  p.  dO,  nt&  :  and  tnjmitUj  (aim 
tha  nil*i  of  both  boium,  eaA  Jttlvnaa't  Uaaiu]  f*ditio«  al  WulilngUa,  IStt), 


CR.  xni.] 


HODK  or  PAaRDiO  LAW9. 


9S» 


{Ktrfect  operation  to  the  mochincry  of  government,  to  adjust  all 
its  niovementg,  to  prevent  its  eccentriciti<>9,  anil  to  halanoc  it« 
forces, — Ail  these  have  t)een  intr^Mluccd,  with  siituciilar  skill,  in* 
gennitv,  and  wisdom,  into  the  structure  of  the  Constitution. 

§  ltU8.  Vet,  after  all,  the  fabric  may  fall;  for  the  work  of 
man  is  perishable,  and  must  forever  have  inherent  cienteuts  of 
decay.  Nay,  it  must  perish,  if  there  be  not  that  vital  spirit  in 
tlie  people  which  alone  can  nourisli.  sustain,  and  direct  all  its 
moromenta  It  is  in  rain  that  statesmen  shall  foi-m  plans  of 
^vemtncnt  in  which  tho  iMtauty  and  harmony  of  a  republic  sliall 
he  pml)odicd  in  visible  order,  shall  be  built  up  on  solid  substruc- 
tions, and  adorned  by  every  useful  ornament,  if  the  inhabitanta 
Htitler  the  silout  power  of  time  to  dilapidate  its  walls,  or  crumble 
its  inaiiay  8U|i)>urtura  into  dust ;  if  tllc  asHsults  from  without  are 
never  resisted,  and  tl)e  rottenness  and  uiininp  from  witliin  aro 
never  yarded  (igainMt.  Who  can  presonit  the  rights  and  lib- 
erties of  the  pco[)k%  when  they  shall  be  nbauduned  by  (hcm- 
st'lvo«  ?  Wlio  shall  kbop  wut«h  in  the  temple^  when  lite  wuU'bmea 
sleep  nt  llieir  |io8t8  ?  Who  sliall  call  u(>«in  the  people  to  redeem 
their  possessions,  and  revive  the  republic,  when  their  own  hands 
hare  deliberntely  and  corruptly  surrendered  them  to  the  op- 
pressor, and  huvo  built  the  prisons,  or  dug  the  fcraves,  of  their 
own  friends  ?  Aristiitle,  in  ancient  times,  upon  a  large  survey  of 
the  republics  of  foniier  days,  and  of  the  facile  manner  in  which 
they  had  been  mode  the  instruments  of  their  own  destruction, 
felt  himself  compelled  to  the  melancholy  reflection,  which  has 
been  painfully  rept'nled  by  one  of  the  greatest  statesmen  of  mod- 
cm  times,  that  a  democracy  has  many  striking  points  of  resem- 
blance with  a  tyranny.  "The  ethical  ehametor,"  says  Edmund 
Burke,  "is  the  name;  l>oth  cxoreine  dcsjMjlisiu  over  the  better 
class  of  citixens;  and  the  decrees  aro  in  the  one  what  ordinanees 
and  arrSts  are  in  the  other.  The  dftna-fo^iu,  lito,  and  the  court 
favorite  are  not  un/requently  the  same  ideiUieal  titrn,  and  alwayt 
bear  a  ehte  analogy.  And  these  have  i\ve  principal  power,  each 
in  their  refl|iect)\'«  governments,  favorites  with  the  absolute 
monarch,  and  demagogues  with  the  people,  such  as  1  liftve 
described."' 

§  004.    This  dark  pictnre,  it  ia  to  be  hoped,  will  never  be 

)  Iturki  em  Ui«  FV*n<rli  Btvolvlioo,  iwte ;  ArisbXH  roUt.  B.  (,  eh.  4.  Sm  Mcntw- 
■(Uira'i  Sprit  oC  Lain.  B.  8,  JMM^m. 


660  coNSTmmoN  of  the  umttbd  biates.         [book  in. 

applicable  to  the  republic  of  America.  And  jet  it  affords  a 
warning  which,  like  all  the  leesons  of  past  experience,  ve  are  not 
permitted  to  disregard.  America,  free,  happy,  and  enlightened 
as  she  is,  must  rest  the  presetration  of  her  rights  and  liberties 
upon  the  virtue,  independence,  justice,  and  sagacity  of  the  people. 
If  either  fail,  the  republic  is  gone.  Its  shadow  may  remain 
with  all  the  pomp  and  circumstance  and  trickery  of  gorenmient^ 
but  its  vital  power  will  have  departed.  In  America,  the  dema- 
gogue  may  arise,  SB  well  as  elsewhere.  He  is  the  natural  though 
spurious  growth  of  republics ;  and  like  the  courtier  he  may,  by 
his  blandishments,  delude  the  ears  and  blind  the  eyes  of  the  people 
to  their  own  destruction.  If  ever  the  day  shall  arrive  in  which 
the  best  talents  and  the  best  virtues  shall  be  driven  from  office 
by  intrigue  or  corruption,  by  the  ostracism  of  the  press,  op  the 
still  more  unrelenting  persecution  of  party,  legislation  will  cease 
to  be  national.     It  will  be  wise  by  accident  and  bad  by  system. 


ca.  xtY.} 


POTBBS  OF   CONGBESS  —  TAXES. 


661 


CHAPTER 


POVBBS  OR  CONGBESS. 


§  905.  We  hare  now  arrived,  in  tlie  courao  of  our  inauiries,  at 
the  ei^th  section  of  tbo  lirat  arocio  of  the  Constitution,  wt 
contains  an  enumeration  of  the  {riiid|ml  powers  of  1e)|[i«lation 
confidvd  to  Guiig^ri'sii.  A  considt-nttion  of  tlM'niost  important 
subject  will  detain  our  attention  for  a_  considerable  tinto;  aa  well 
because  of  till-  variety  of  to|>ies  wliich  it  cmbrnoi-s,  as  of  the  con- 
troverHtua  and  discussions  to  wbidi  it  has  ^vcn  rise.  It  has  l>ccn 
in  the  [Mat  tjmo,  it  is  in  tlic  prcacnt  time,  and  it  will  probably  in 
all  future  time  cuiitiuuc  to  be  tho  debatable  ground  of  the  Cun- 
stitutiou,  Higiialixed  at  once  by  the  victoricjt  and  the  defeats  of  th« 
same  partka.  Here  the  advocates  of  State  rights  ond  the  fricnda 
of  the  Union  will  meet  in  hoflUlo  array.  And  here  those  who 
have  lost. power  will  maintain  long  and  arduous  strn^les  to  re- 
gain  tho  public  confidence,  and  those  who  have  sueurcd  power 
will  dispute  every  position  whicli  iiiny  be  assumed  fur  attack, 
cither  of  their  policy  or  their  principles.  Nor  ou^it  it  at  all  to 
surprise  us  if  that  which  haa  been  true  in  tlie  political  history  of 
other  nations  sluUI  be  true  in  regard  to  our  own :  that  the  oppos* 
ini;  parties  shall  occaxioually  ho  found  to  maintain  the  same  sya* 
tem,  when  in  power,  which  they  have  obstinately  resisted  when 
out  of  power.  Without  supposing  any  insincerity  or  departure 
from  principle  in  such  cosea,  it  will  be  easily  imagined  that  a  very 
difTereiit  course  of  reasoning  will  force  itaelf  on  the  minds  of 
those  who  are  responsible  for  the  measures  of  government,  from 
Ihiit  which  tho  ardor  of  opposition  and  tho  jealouBy  of  rivals 
might  well  foeter  in  those  who  may  desire  to  defeat  what  they 
hMve  no  interest  to  approve. 

^  !)04l.  The  first  clause  of  tlio  ei(;hth  section  is  in  the  following 
words :  "  llie  Congress  sluill  have  jwwer  to  lny  and  colleel  taxes, 
duties,  imposts,  and  excises  to  pay  the  debts  and  provide  for  tbo 
common  defence  and  general  welfare  of  tht;  Unil.-fl  States;  but 
all  duties,  iinpoela,  and  excises  shall  bo  uniform  throughout  the 
United  Statea." 


662 


OP  THK  0HIT1CD  mA^Ei.  [bOOK  rlL 


§  907.  Before  proceeding  to  oon»id«r  the  nntiire  an^  extent  of 
the  power  confvrriM]  bj  thu  cl«ii»(!,  and  the  reasoiiB  on  which  tt  is 
founded,  it  Hccin^  ncccjisiiry  to  settle  the  grammatical  constmc- 
tioQ  of  the  clause,  and  to  ascertain  tta  true  reading.  Do  the 
trords,  "  to  lay  aod  collect  taxes,  duties,  imposta,  and  excises ," 
constitute  a  distinct  substantial  power;  and  the  wordH,  "to  pay 
Ihfl  debts  and  provide  for  the  common  dt-fencc  and  general  wcl- 
fnre  of  the  United  States,"  constitute  another  distinct  and  sub- 
stantial power  f  Or  are  the  latter  words  connected  with  (be 
former  so  as  to  constitute  a  qualificatjun  upou  them  !  This  lias 
been  a  topic  of  |>olitical  contruvcnty,  and  has  furnished  abundant 
materials  for  popular  declamation  and  alann.  If  the  former  lio 
the  true  iiitvr[)retation,  then  it  is  obvious  that  under  color  of  tlie 
generality  of  the  words,  to  "  provide  for  the  common  defence  and 
general  welfare,"  the  government  of  the  United  States  is,  in  real- 
ity, a  government  of  general  and  unlimited  powers,  notwitlistnn<l- 
ing  the  subsC(]uent  enumeration  of  specific  powers;  if  the  tatter 
be  the  true  coustruction,  then  the  power  of  taxation  only  is  iriven 
by  the  clause,  and  it  is  limited  to  objects  of  a  national  character, 
"  to  pay  the  lieljls  and  provide  for  the  common  defence  and  tbe 
general  welfare.*' 

§  908.  l*hc  former  opinion  has  been  maintain^  by  some  minds 
of  great  ingenuity  and  liberality  of  views.'  The  latter  has  l>e(>n 
the  generally  received  sense  of  the  nation,  and  seems  auppnrlei) 
by  reasoning  at  onoc  solid  and  impregnable.    The  reading^,  tbet«- 

>  8m  2  Elliut'i  UvbMa^  SIT,  333.  8«  DuiiAi  App.  f  41.  p.  48 1  mr  •lu>  1  ElUot'i 
DeUtM.  M :  Id.  393  ;  Id.  300 1 2  WiUoni  Uw  l^^n.  178,  ISO.  1^1  ;  4  EUJM'i  DelatM,, 
S£l ;  9  U.  S.  Lav  Joarnal,  At«il,  ISM,  pp.  SSI,  SCI.  370  lo  tfi.  Tliii  lut  miA , 
latri*  In  p.  STO  tt  wf .  ■  vary  (Itborai*  cxionitloa  uf  the  docvlM.  Ut.  JWTxnoa 
Kpoa  aB«n  tiMa  one  aocwiiMi,  iMialad  tbat  tbis  wb  th«  r«dn«i  ilcntrine,  tliat  «^  pH 
ihietriiie  iiuiaUiBnlIiTtb»lc<lanilMUMa  fnj:  aad  that  UNaUwrdootrii  ''  ..t 

of  Uu  rtjiutilkaiu  o)  «  ptrty.    4  JdTanntt't  Cormqi.  3M.    TbE  tuatttian  i 
for  tile  Utlir  Dpiiikiii  iru  condaatljr  (ntint^ncd  hv  noiii*  «f  tlia  tno«t  xmncum  f,ili.nl- 
itt*  Bt  tbi  tlma  of  lb*  ulaiNliw  «f  iIm  Ccuntthilion.  uiil  bM  linn'  Von  mintuncd  hj 
ttnnf  ot  thorn.    2  KUiiA'it  tMMf,  170,  183,  IIiS ;  t  KUiol'«  DctntM.  tM  ;  ■£ 
liiiwiiM,  434  :  3  Amtr.  Uuiwun.  338.     It  U  niDufcabln  that  Ut.  G(vr^  Mi.^no,  na 
o(i]i«  muti  itivi-lol  oppoaMt*  cj  the  CoMtitntiob  In  il><!  Vit)^nia (ni  '.a| 

^uiaa  thit  tbn  claiuiev  t»  pioviik  F>r  the  eoamtm  Aiimre  tai  i^^ 
■nbtUBtirc  pown.     lie  uUod,  "  That  Congnn  Aould  b*rg  |< 
pMnI  wtlfara  of  Uio  CnUat,  I  i[t*ttt.     Bol  1  irtak  >  dMM  is  t 
*pnt  t«  kU  pow«r(,  vliUh  an  licit  cnuitcd,  Ikit  Ilit;-  are  nlunsil  \jj  t : 

wtw,  lUe  po"-Tr  <rf|ir«»ldl»^fi)ttlM(jtai.'nilwd£ir5iiia]rl)«ii«verlcdl. -^...»- 

2  EUMt'a  IMmUa,  327,  3U. 


CH.  Xir.) 


roWK&S  OF  CUN<1RBSR  —  TAXES. 


ees 


[ore,  which  will  bo  maintained  in  theee  oommeotarieB  is  tbftt 
wbich  makes  the  latter  words  a  qualiGcatinii  of  the  former ;  and 
this  wilt  be  best  illustrated  by  8up)>lyiiig  the  wordii  which  arc  ikc* 
ce»aarilj'  to  be  understood  in  this  interpretation.  Tbe^-  will  tbeo 
stand  thus:  "The  Congress  shall  have  power  to  lav  and  ci>llt<«t 
taxes,  duties,  imposts,  and  excises,  in  order  to  pay  the  debts,  and 
to  provide  fur  Ibc  common  defooce  and  genera)  wcUurc  of  the 
United  Stut4!)i;"  that  is,  for  the  purpose  of  paj^iug  the  public 
debtf),  imd  providing  for  the  common  defence  and  general  welfare 
of  tbu  United  iituLes.  In  thiH  seiuie,  Congress  has  not  an  un- 
limited power  of  taxation ;  but  it  is  limited  to  specific  objects, — 
tlie  payment  of  the  public  debts,  and  providing  for  the  common 
dcfeui^  and  general  welfare.  A  tax,  therefore,  laid  Uy  Congress 
for  nuitlicr  of  these  objects,  would  Iw  imconslitutioual,  us  an  ex- 
cess of  its  legidatiro  authority.  In  what  manner  this  is  to  bo  us- 
Certained  or  decided  will  be  considcn-d  hereafter.  At  preacut  tltc 
interpretation  of  the  words  only  is  before  us ;  and  the  reasoning 
hy  which  that  already  suggested  has  bc«n  vindicated  will  now  be 
reviewed. 

■§  909.  The  Constitution  was,  from  its  very  origin,  contem- 
plated to  be  the  frame  of  a  national  government,  of  special  and 
enumerated  powers,  and  not  of  general  and  unlimited  powers. 
Thiit  ia  apparent,  as  will  be  presently  seen  Iroui  the  hielor}'  of  the 
proceedings  of  the  convention  which  framed  it ;  and  it  has  formed 
tlic  admitted  t>a.His  of  all  legislative  and  judicial  reasoning  upon 
it  ever  since  it  was  put  into  operation,  by  all  who  have  been  its 
open  friends  and  advocatos  as  well  as  by  all  who  hare  been  its 
enemies  and  opponents.  If  the  clause,  *'to  pay  the  debts  and 
provide  for  tlie  common  defence  and  general  welfare  of  the 
United  States,"  is  construed  to  be  an  independent  and  aubstau- 
tire  grant  of  power,  it  n«t  only  renders  wholly  nnim|>ortant  and 
nnnecessary  the  subsequent  enumcratiou  of  specilic  powers,  but  it 
plainly  extends  far  beyond  them  and  creates  a  general  authority 
in  Cungresa  to  pass  all  laws  which  they  may  deem  for  t)io  com- 
mon defenw  or  general  welfare.'  Under  such  circnmstancea  the 
Constitution  would  practically  create  an  unlimited  national  gov- 
ernment. The  enumerated  powers  would  tend  tu  emlutrrassment 
and  confusion,  since  ttivy  would  only  give  rise  to  doubts  as  to  the 
true  extent  of  the  g^-neral  power,  or  of  the  cnunioratM]  |«ower8. 

>  rn*ld«til  UoniM'*  Ucm0^  *>^  ^r>  1SS%  pp.  $%  33. 


664 


COSSntCTIOS  OP  TBE  DinTKD  STATEa.  [BOOK  tit. 


§  910.  One  of  the  most  oommoii  maxims  oi  iiili^rpKtiitioa  is 
(as  has  been  already  stated),  that,  u8  on  exception  atrcngthuaii 
the  force  of  a  law  in  caaes  not  cxccptod,  so  miuinuraliou  wimIcviu 
it  in  cases  not  cnumorntiid.  But  how  could  it  be  applied  with 
ancceaa  to  the  iDtvrpretatiou  of  the  Constiiiition  of  the  United 
States,  if  thp  enumerated  powera  were  neiUier  exceptions  fmm 
nor  additions  to  the  general  power  to  provide  for  the  coniniou 
defence  and  general  welfare?  To  pve  the, enumiimtjon  of  tbe 
specific  powvrs  any  sensible  place  or  operation  iii  tlie  ConatitO' 
titiu,  it  is  indispensable  to  constnie  them  an  not  wholly  aud  neeea-' 
earily  embraced  in  the  general  power.  Tbe  common  principlefl  of 
interpretation  would  seem  to  instruct  us  that  the  different  ports 
of  the  same  instrument  ought  to  be  no  expounded  aa  to  give 
meanini^  to  every  part  which  will  bear  it  Shall  one  jiart  of  the 
same  Etenteiice  Ike  excluded  altogether  from  a  share  in  the  im^aninfr; 
and  ^all  the  more  doubtful  and  indclinite  terms  lie  rctaini-d  in 
their  full  extent,  and  the  clear  and  precise  exprcAuooa  lie  denied 
any  signification  ?  For  what  purpose  could  the  enumeration  of 
particular  powers  be  inserted,  if  these  and  all  others  were  meant 
to  bo  included  in  the  preceding  general  power  i  XutJiing  is 
more  natural  or  common  than  first  to  nse  a  general  phrase,  and 
then  to  cjualify  it  by  a  recital  of  particulars.  But  the  Idea  of  an 
enumeration  of  particulara  which  neither  explain  nor  (|ualify  tbe 
general  meaning,  and  can  have  no  other  effect  than  to  confound  < 
and  mislead,  b  an  absurdity  which  no  one  ought  to  charge  on  the 
enlightened  uulliors  of  tbe  Constitution.'  tt  would  be  to  charge 
them  oitjier  with  premeditated  folly  or  premeditated  fraud. 

§  911.  On  the  other  h»ii<I,  construing  this  clause  in  connecUaD 
with  and  im  u  ptirt  uf  the  precetlin^  eliiuse  giving  the  power  to  lay 
taxca,  it  become*  sensible  and  operative.  It  bouomes  a  qualifica- 
tion of  that  claimc,  uiid  limits  the  taxing  power  to  objects  for  the 
common  defence  or  gcncntl  welfare.  It  then  contains  no  grant 
of  any  power  whatsoc\-cr ;  but  it  is  a  more  expreaeiou  of  the  oodii 
and  purposes  lo  lie  effected  by  the  preceding  power  of  taxation.' 

§  912.  An  attempt  has  been  sometimes  made  to  tn^ut  this 
clause  as  distinct  and  independent,  and  yet  as  having  no  real  slg- 


>  Tbe  Fedeimlkt,  No.  41. 

*  Sm  Dcbftta  on  IIm  Jndicury  in  180%  ^  S59 :  Oibc'i  App.  f  41  . 
nt't  UwMg*  on  IbUtdiI  ImiirovmaDM,  ttb  Hay,  1S2I,  |>t>-  32,  33 . 
App.331. 


^I>>B■ 


CH.  UV.] 


P0WBB8  OP  OOKOBRSB  — TAZea. 


6«S 


nilicancy  per  te,  bat  (if  it  may  be  bo  said}  aa  a  mere  prelude  to 
the  succeeding  enumoreted  poweni.  It  is  not  improbable  that 
this  mode  of  cxjilaiiatiun  has  bcvn  saggcstcd  bjr  the  fact,  that  in 
thfl  revJAMl  draft  of  tttc  Cuiuttitution  in  the  cuavuntion  the  clause 
was  8c{Kiirate<]  from  the  [>rvcodiog  exactly  in  the  same  manner  ss 
uvi^ry  HuceMsdiug  clause  via,  namely,  by  a  semicolon,  and  a  break 
in  the  iwrograph  ;  nad  tliat  it  now  ittauds  iu  some  copies,  and  it  is 
said  that  it  sbmds  in  the  of)iciaK.Gopy,  witb  a  semicolon  inter- 
poaed.'  Bui  Uits  circuniiilniici'  will  l(C  found  of  vcrj'  little  weijfht, 
when  tJic  origin  of  the  claiiso  and\it«  progress  lo  its  present  stutc 
are  tracc^l  in  the  ])roc9odiipgi  in  the  convention.  It  will  then  ap- 
pear that  it  was  Grjtf  introdncod  as  an  appendage  to  the  jrower  lo 
lay  taxe^.'  Itut  there  J«  a  fuudamcntai  objection  tx>  iJm  interpre- 
tation thus  attem)>ed  to  bo  maintained,  which  is,  thatVrobs  Uie 
clause  of  all  efhcacy  and  meaning.  No  person  has  a  right  to  aa> 
fliime  that  any  part  of  .the  Constitution  is  uHeless,  v  ii*  without  a 
meaning:  uii  a  fortiori  ao  person  has  u  right  to  ro^any  fart  of 
a  meaniug,  natural  und'  Appropriate  to  the  longuagcnn  the  con- 
nection iu  wliLch  It  stands.*  Now,  the  words  have  such  u  natnral 
and  upprupriAte  nltsaniag  as  a  qualiGcalion  of  the  procoding  clause 
to  lay  taxes.    Why,  Ihun.  should  such  a  meaning  be  rejected  T 

§  913.  It  IS  n6  sufTicioiit  auHwer  tu  say  that  the  clause  ou^^ht  to 
be  regarded  merely  as  coritiiiuing  "  general  terms  cxpluini'd  uud 
limited  by  the  subjoined  specifications,  and  tliercforc  requiring  no 
critical  attention  or  studied  precaution,"*  because  it  is  assuming 
the  very  point  in  coutrON  ersy  to  assert  that  the  clause  ts  connoeted 
with  any  subsequent  spL-cificutions.  It  is  not  sud,  to  "  provide 
for  the  Common  defence,  and  general  welfare,  ii»  manner folloifin^, 
!'(>.,"  which  would  be  tlie  natural  eicpresston  to  indicate  audi  an 
intention.  But  it  stands  entii-ely  disconnected  from  every  subse- 
quent clatikc,  both  in  s<-nse  end  punctuation,  and  is  no  more  a 
part  of  thorn  tluut  they  arc  of  tlic  power  to  Uy  taxes.    Besides, 

>  Journ.  of  ConnntlDD,  p.  SSA  :  iiL  t»i  ;  S  ITiiftod  Suua  Uai  JMrMl,  p.  2S4, 
April,  ISSS,  K«>  York.  In  Th*  Ffilmlln.  Xo.  tl,  Ui*  dn:im«U»c«  Uul  it  la  »*f- 
anuel  tnm  lb«  mooeedbg  rlttiM  hj  •  wmkalm  i*  notbmi  Tha  prlnttj  JonrHiI  of 
lb*  OwMntkM  fin*  Um  nriwl  dnft  from  Mr.  BrMrly'i  (opr.  w  abova  uatx).  8m 
Jounul  of  Cannmiwa,  pf>.  3S1,  3&S.  Srt  PnMmt  Honrae'i  Mnwp  on  Intcnud 
iMpmnmcsti,  4Ui  Uajr,  1S22,  pfi.  IS,  32,  Ac. 

*  Jonra.  uf  Coiinntton,  n^-  ^tS-  !<2^  >!"• 

*  l>n«i>kat  UontM'a  MtMjn.  (tU  11*^,  IiaS,  Rk  S%  U. 

*  Fn(u)«t  MmIwoq'*  Ij«IM  lo  3Ir.  SlvrawM,  37  H«r.  I8W. 


666 


COKSTITDTION   OP  TOE  OKITKD  OTATES.  [BOOK  lH. 


whut  suitable  fipplication,  iu  sucli  «  wnse,  would  Uicrc  be  of  tbo 
laat  claiisv  in  tbo  enumeration,  fix,,  the  cluuse  "  to  nnkc  all  laws 
neoeesaiy  and  proper  for  carrying  ihto  execution  tin-  forogoiog 
powers,  *«."?  Surely,  this  cluuac  ia  as  applicable  to  tttc  [iuhlt 
to  lay  taxea  ao  to  any  other,  aud  iu>  one  would  dream  of  ita  being 
a  mere  specification  undur  the  power  to  provide  for  Uie  ooaimom 
defence  and  gt-ncral  wolfore. 

§  914.  It  has  bL-cn  said,  in  support  of  tJiis  constructioo,  that 
in  the  articles  of  couk-dfration  (art.  8)  it  \g  provided,  Iliikt  "all 
charges  of  war,  and  all  other  cx))cn«c8  that  ahali  he  incurred  for 
(he  common  defence  or  general  welfare,  and  allowed  by  tfa« 
United  States  in  Congrc»s  nssembled,  shall  \>c  defrayed  ont  of  the 
common  trcnsiiry,  ire.;"  and  that  "the  similarity  in  the  use  of 
these  »iiuic  phrases  in  those  two  great  federal  charters  may  well 
be  considcretl  as  rendering  their  meAuing  less  liable  to  iniscon- 
stniction;  because  ic  will  scarcely  ho  said  that  in  the  former^ 
they  were  ever  understood  to  bo  either  a  general  grant  or  power, 
or  to  aiithorixie  the  requisition  or  application  of  money  by  tho 
old  Oongrras  to  tho  conimon  defence  aod  [or]  '  genera)  welfonv^ 
except  in  the  cn^tos  afterwards  enumerated,  which  explained 
limited  their  meaning;  and  if  such  was  the  limited  meaning  at- 
tached to  these  phrases  in  tho  very  instniioent  rerisod  and  re- 
modelled  by  the  present  Constitution,  it  can  never  be  8up)k«mI 
that  when  cojiied  into  this  Constitution  a  different  moaning 
ought  to  be  attached  to  Ihpm."'  Without  stopptn?  to  cuididcr 
whether  the  Constitution  can  in  any  just  and  critical  sense  be 
deemed  a  revision  and  remodelling  of  the  confederatinn,^  if  the 
argument  here  ufatcd  be  of  any  %-alue  it  plainly  establicilioa  that 
the  words  ought  to  be  conatnied  as  a  (|ualifiratioR  or  limitation' 
of  the  power  to  lay  taxeo.  Br  the  conMeratioo,  all  exitensea 
incurred  for  the  common  defence  or  fieneral  rolfarc  an'  to  be  ie- 
frajcd  out  of  A  common  treasury,  to  be  supfdicd  by  roquinitiiuiSj 
upon  the  (States.  ImitcAd  of  requisitions,  tliu  Cunstituliim  give 
the  right  to  the  national  goi-eniment  directly  to  hiy  tuxes.  So 
tliat  tJie  only  difference  in  tliis  view  between  the  two  elntm-s  ia, 
as  to  the  mode  of  obtaining  the  money,  not  as  to  the  objects  or 


>  ••  Or' tothavonl  In  Uw  article. 
*  Virgutim  BqKVt  and  RMalnlioM  of  7  Juituijr,  WO.    8m  abo  Ilia  Fwltnlat, 
Ho.  41. 

■  Sm  Tbs  Fodmlirt,  Ko.  40. 


CB.  MV.] 


POVBnS  OF  O0KQBE8S — TAXB9. 


667 


pnrpoma  to  which  it  is  to  he  applied.  If,  then,  this  Constitution 
vere  to  be  coriBtraod  according  to  the  tru«  bearing  of  tliia  Mrga- 
mont,  it  wonld  read  thua :  Congrt^ss  ahall  hare  power  to  lay  taxvt; 
fur  "all  diar|?E«  of  war,  and  all  other  expctinrs  tliat  shall  be 
incurred  for  the  comtaon  defence  or  ireneral  welfare."  Tiifs 
(■lainly  makra  it  a  ■{ualification  of  th«  taxinii;  power,  and  iiot  an 
iiidi-|>tndent  proWsiun  or  a  funeral  index  to  the  eiiiccoodin^  spe- 
ciriciitiona  of  power.  There  Ib  not,  however,  any  aoUd  ground 
upon  which  it  can  be  for  a  momont  maintainiKl  that  the  language 
of  the  Constitution  is  to  be  enlar^r^d  or  restricted  by  tlic  lunpiage 
of  thu  oonfi-ilvnitiuut  That  would  be  to  make  it  SjM'^uk  whut  its 
wortU  do  not  ttqAm  and  it«  objects  do  not  justify.  It  would  be 
to  ap|ieiid  il^w^Qwdicil  to  on  instniinent  which  it  was  dvsigDcd 
wholly  to^w^enede  and  vacate 

§  015.  Jlut  the  ailment  in  it*  other  branch  r«sls  on  an  as- 
sumed hpin  which  io  not  admitted.  It  suppose!)  that  in  tlip  con* 
f(>deri^jon  no  expenses  not  strictly  incurred  under  soinn  of  the 
flube«<)ucnt  apecilicd  powers  given  to  the  continental  Congress 
could  be  pro]»crIy  payable  out  of  the  common  treajiury.  Now, 
that  ia  a  propiutition  to  be  proved,  and  is  not  to  be  taken  for 
granted.  Tho  confederation  was  not  finally  ratified  ao  as  to  be- 
come  a  hindintr  instrument  on  any  of  tbe  .Statm  until  March, 
1781.  Until  that  period  there  could  be  no  practice  or  construc- 
tion under  it;  and  it  is  not  shown  that  subsequently  there  was 
any  exp4)sition  to  the  effect  now  insisted  on.  Indued,  after  the 
peace  of  17S3,  if  there  had  boon  any  such  exposition,  and  it  had 
liecn  unfavomblo  to  the  broad  exercise  of  the  power,  it  would 
have  been  cntilted  to  less  weight  than  usually  belongs  to  the 
proccettin)^  of  public  butlica  in  the  administration  of  their  pow- 
ers; since  the  decline  and  fall  of  the  confederation  wore  so  obvi- 
ous that  it  was  of  little  inc  to  exert  tliem.  The  States  notoriously 
disregarded  the  rights  and  prcronntivns  admitted  to  l>clong  to  the 
confederacy,  and  even  the  requisitious  of  Congress  for  objects 
moat  unquestionably  witliin  their  constitutional  authority  were 
openly  denied  or  silently  crnded.  Under  such  circumstancos 
Coiigrcaa  would  liave  little  inclination  to  look  closely  to  their 
powers,  sinee^  whether  great  or  small,  large  or  narrow,  thoy 
were  of  little  praelical  value  and  of  no  practical  eojpL'Ucy. 

§  i)lG.  But  it  docs  so  happen,  tliat,  in  |>oint  of  fact,  no  such 
unfavorable  or  restrictive  interpretation  or  practice  wu»  ever 


668 


coKsmimoK  of  tub  tnoTBD  statka.        [book  iu. 


adopted  bj  the  ooatinental  CongrcM.  On  the  contrary,  thej 
construed  their  power  on  the  eubjcct  of  requisitions  and  taxation 
exactly  us  it  ia  now  cont£nd<.Mi  for,  as  a  power  to  make  requisitioiM 
on  the  States  for  all  cxptiuKOs  which  they  might  deem  proper  to 
incur  for  the  common  defence  and  general  welfare;  and  to  ap- 
pro])riate  all  monoys  iu  the  treasary  to  tJie  like  purpoeca  This 
is  admitted  to  be  of  »iich  notoriety  as  to  require  no  proof.' 
Surely,  the  practice  of  tliat  hody  in  qoestiona  of  thia  nature  must 
bfi  of  far  hiffht-r  value  than  the  mere  private  interprctalinu  of  any 
persons  in  the  prouvut  times,  however  respectable.  Hut  the  prac- 
tice WB8  conformable  to  the  consitutional  aatJutritv  of  CongreiM 
under  the  confederation.  The  ninth  article  expressly  ddepitea 
to  Congreiui  the  power  "to  ascertain  tlie  necessary  sums  to  be 
raisvd  for  the  service  of  the  United  States,  and  to  appropriate 
and  |ap]>ly  the  same  for  defraying  the  public  expenses;"  and 
theu  provides  that  Congress  sliall  not  "ascertain  the  sums  and 
expenses  necessary  for  thu  drftme€  and  vtlfare  of  the  United 
States,  or  any  of  thevi,  Ac,  uulcss  nine  States  assent  to  the 

>  ill.  UaiUniii  kbiMK  in  hi*  htttr  to  Mr,  StcTcnMm,  Not.  37,  1S30,  hIiiijU  lh« 
torcA  oT  ihawt  rcmarkn  tn  thvii  (uti  viUnL  Hit  Ikngtugr  It,  "  If  iha  [mrtjoe  «f  Uw 
icTDlatioDaijr  Congran  be  pimkil  in  oppoaitioD  to  tLj*  view  or  ibo  caM**  (I.  •■  U( 
view,  Uut  Um  wonla  have  no  diiUoet  mmning},  "  tlw  pita  fa  nut  by  th«  notoflBtf; . 
ikkt,  on  MTaml  taxntnU,  ibo  [aactic«  gt  tbM  body  U  not  ik*  cxp«mlor  or  Ui*  , 
of  tti«  CVinMoraUoii.  Tfata*  uIIcIm  «mv  oM  ia  (om  onUl  tbey  wen  fltully  rmU'fied  by 
MatxluuL  In  1781.  Prior  W  tb>t  event,  tbt  ptwtr  ct  CangroM  um  niMnirKl  l>;  tlw ' 
fxiganciH  of  the  w:  mi  dtnnd  ita  MBCtiaii  fte«n  ih*  ■ci|vl>*n>n('»  uf  lb«  HialM, 
After  that  crcnt.  bafait,  and  ■  ooutinuod  ei|iMU«Dty,  •moanling  ofltn  to  a  imI  of  m 
*)ipuvnt  MOtHlly.  iiro1aa(Ml  Iho  ewrelM  of  W  ua<]c6Btd  aatlioril;,  ohich  •«  tb« 
mote  rradil;  oterkokid,  m  the  tnumUn  of  that  body  b*ld  tluir  waU  •Inrin,;  i^l'-^uart; 
M  ila  act*,  jwticniarljr  aRer  the  failiin'  of  tlie  biUt  at  crntil,  J*iir«iil>  j  rfl- 

<M!y  OB  the  will  of  tlw  Btato^  and  m  iu  gmml  impolMiFv  bMsunv  '  A»- 

amptea  of  dtfiBiurtfnm  tht  pnttHitd  raU  art  too  bkU  hr-nm  la  n^uirt  pmu/."    So 
that  it  ii  admittod,  that  the  pntdlM  nnd«r  tlir  confMlnatic*!  ava  DoUniouiilf  each  aa 
alloved  approprlatlDna  by  Congna  toir  tmj  oIiJctIb  whkh  Khej  detwod  (ot  lb*  oooiBioa 
deboco  and  Kt««nl  wd&ir.    And  yet  we  an  now  caDnf  apan  Vt  uln  a  nnw  *a4 
MOdsn  itloM  of  tbat  initnimMt,  dliactly  at  variance  >ilh  that  loaclie*.     Sm  abi 
Ut.  Wilaas'a  pamphlet  on  tka  Con^tilutloBillty  ^  lb*  Bank  of  Nortb   AniTrica.  in 
ITSS.     Thenueti  why  bedomnotallaiUlo  the  t«nua*'<MBiDMidf<(w«  and  (rawnl 
wcltaiv,"  in  that  arpistnt,  pnbiUy  wav  that  there  waa  do  qnwti. 
prtatiana  of  money  IsTolvrd  b  that  diwuauoiL     11*  ttreDnoMly 
KiTM  Iml  a  rigkt  t«  charter  tha  baak  ;  asd  be  aJludei  to  tb*  UH.  *i 
■lie  conrrcient  iMiiafirniewt  of  the  fmur»l  fataiMt  at  the  [TDUnd  -s 
for  the  ^ipoititatMit  of  delegate  Ana  tlin  .Statm.     Ho  d«dae*«  titc  i  iia 

bttng  eaxtitklly  taHanal,  a»d  vitaltj  iapottaat  lo  tb«  goTtmntnl.    's  l^w 

LccLa&r. 


CH.  XIV.] 


F0WKB8  OP  CON'GRESS  —  TAXES. 


669 


name."  So  Uint  here  vc  havo,  in  the  eighth  article,  a  dcclari- 
tioD  that  "all  chaises  of  war  and  all  other  «spcn«e«  that  «bttll 
be  incurred  for  the  common  dfffnce  or  general  welfare,  A'C,  8ha1l 
be  defrayed  out  of  a  common  trcaaur; ; "  and  in  the  ninth  article 
tui  vsprctM  powtir  to  ascertain  the  ncocssary  sums  nf  money  to  be 
ratit«d  for  tbv  public  service,  and  then  tliat  the  neceaaari'  siinis 
f»r  the  defence  and  welfare  of  the  Dnited  States  (and  not  of  the 
L''nit4Ml  States  ulune,  (or  the  words  are  added),  or  of  ang  of  (A«m, 
ahail  be  oitcerlainod  by  tho  luutcnt  of  nine  States.  Clearly, 
therefore,  upon  the  plain  Icin^&fre  of  tlic  articles,  the  worcUi 
"common  defence  and  frvncrsl  welfare"  in  one,  and  "defence 
and  welfare"  in  another,  and  "public  servioo"  in  another,  wore 
not  idle  words,  but  wore  desoriptirc  of  the  very  intent  and  ob- 
ject* of  the  power,  and  not  confined  even  to  tlie  defence  and  wel- 
&re  of  all  the  States,  but  oxtendinK  to  the  welfare  and  defence  of 
any  of  them. '  l*he  power  then  is,  in  thia  ricvr,  creii  lai^r  than 
that  conferred  by  the  Constitution. 

§  917.  But  there  is  no  ground  vhatsocver  which  authorizes 
any  resort  to  the  confederatinn,  to  interpret  the  jwwer  of  taxa- 
tion which  is  conferred  on  Congress  by  the  Constitntion.  The 
cluiuic  hat  00  refercnco  whatsoever  to  tho  coufcdenttion,  nor  in- 
deed to  any  otiier  clause  of  the  Constitution.  It  is,  on  its  face,  a 
distinct,  substantive,  and  independent  power.  Who,  then,  is  at 
liljerty  to  say  that  it  is  to  be  limited  by  other  clausea,  rather  than 
tlioy  to  bo  enlarged  by  it;  since  there  ia  no  avowed  conncetion 
or  reference  from  tho  one  to  the  others  ?  Interpretation  would 
here  desert  its  proper  office,  that  which  retjuires  that  "ewry  part 
of  tlie  expresition  ought,  if  ixusible,  to  lie  allowed  some  meaning, 
and  be  made  to  conspire  to  some  common  end."* 

I  918.  It  haa  lieen  further  said,  in  supiwrt  of  the  construction 
now  under  consideration,  that  "  whether  Uie  phrase*  in  qitcstion 
are  construed  to  authorize  every  measure  relating  to  tho  oommon 
defence  and  general  welfare,  as  contended  by  some,  or  every 

>  *  EUinf«  IVK  195. 

*  Tlw  FtdcnUkt,  Ko.  M  la  tb*  fint  dnft,  of  Dr.  Fnnklb,  In  1775;  Um  cImw 
WH  M  fclknn :  "All  c^rgn  at  tmn,  •nil  all  olbcr  pnanl  MpantM  la  b*  iaeumd 
for  th*  MmmoB  i>*UuN  AtU  Im  dt/nyrd,"  *«■  In  Mr.  Diekiuaoo'i  dnft,  in  Jnlj, 
1T7S,  tb*  HMJi  wtN.  "  All  charSM  of  <Mia,  mil  all  oOut  rapnuM  ihat  tlnll  bo 
iMennod  tat  th*  eooMiMa  iMrni*  ct  gmcnl  wtlbm,"  te. ;  ud  thoM  ward«  won  lutf 
iniamtlr  i«uin«d.  1  Becrrt  Jav.  of  Ongnm  {pcfntad  In  1831).  ff,  m,  IM,  UT, 
8S9  Ui  SSfi,  Ul. 


«70 


CONSnXCTIOS   OP  TUB  OmTKD  STATES.  [BOOB  lU. 


measure  only  in  which  there  mi(;ht  bo  »a  application  of  money, 
aa  Buggcsttid  bj^  tiic  caution  of  others,  the  I'fTcct  must  eulxstun- 
tially  be  the  sumv,  io  dcBtroyin);  the  import  itnil  force  of  Ihe  |)3r-j 
ticular  OQUtncrutiuii  uf  puw«rs  which  follow  Uiesc  general  pfc 
in  the  CuuBtitutioa.     Fur  it  ia  evident  Uiat  Uiere  is  not  *  ftingle 
power  whatsoever  which  may  not  have  some  reference  to  iJie  amf^ 
moil  defence  or  the  general  welfare ;  nor  a  power  of  uiy  lua^oi'f 
tilde,    which,    in  its  exercise,   does  not  involve  or  admit  an 
ftppltcatioQ  of  money.      I'iie  jjovcrament,  therefore,  which  pa»^ 
tOSMS  power  in  citiior  one  or  the  other  of  tlii-tie  extents,  is  a  gov 
cmment  without  liroilationii,  formed  by  a  particuhir  enumenttiuo 
of   powem;  and,  coiute'iiiontly,  the  meaning  and   eflM^t  of    thia 
particular  enumeration  are  detttroyed  by  the  exposition  given  td^ 
iheiK   general   phrancfl."     The   concluBion   deduced  from   thvsu 
premises  is,  that,  under  the  confederation  and  the  Cuustihition,: 
"  Congress  is  authorized  to  provide  money  (or  tlie  common  du-l 
fence  and  general  welfare.    In  both  is  inibjoincd  to  this  authority 
ftn  enumeration  of  the  cases  to  which  their  powers  sttiill  uxteiKL. 
Money  cannot  t>o  applied  to  the  general  wclfun;,  otlierwisc  thu 
hy  an  application  of  it  to  some  particular  measure,  condnciTv  to 
Iho  funeral    welfare.      Whenever,    thenrfore,    money  ba« 
raised  by  the  general  authority,  and  is  to  be  applied  to  a  partim 
Ur  measure,  a  quivtion  arises,  whether  tlie  |tarticuUr  mf 
he  within  the  enumerated  authorities  vested  in  the  Congress.     If 
it  be,  the  money  requisite  for  it  may  be  applied  to  it;  if  it  bo 
not,  no  such  application  can  be  made.     Thin  fair  and  obvioits  in- 
terpretation coincides  witik,  and  is  enforced  by,  the  clauMi  in  the 
Constitution,  which  declares  that  no  money  shall  he  tiniwn  (roiD 
tiiu  treasury  but  in  consequence  of  apprupriution»  by  law.     Au 
appropriation  of  money  to  the  ^oneral  weUaro  would  be  ducmed 
rather  a  mockery  than  on  ohsorraace  uf  this  constitutional  iu- 
jnnction. "  • 

§  9iy.  Strijiped  of  the  ingenious  texture  by  which  this  argu- 
ment is  disgniaed,  it,  \»  neillier  more  nor  less  tlian  an  nlU-mpt  {<t 
obliterate  from  the  Coiiittil^ition  tiie  whole  claus*,  ""lo  \>ay  the 
debts,  and  provide  for  tlie  common  defence  and  general  welfare 
of  the  United  States,"  as  entirely  senselesA,  or  inexpressive  of 


'  Vtqilah  IL«MlMioM  tt  8th  Jwriuiry,  ISOO.    The  Maa«  KMoniiiit  ii  in  IVeniUat 
MadiMB-*  vbU  m«i(p.  of  U  ol  U uch,  I81T.    i  EUiM'i  D«h.  SSO,  3SI. 


CH.  XIT.] 


OF  ayKOBXSi^TAXBi. 


671 


(my  intention  whatwerep.'  Strike  them  out,  and  the  Conatitn- 
tion  i»  t>xactl)-  what  tlie  argument  contends  for.  It  is,  there- 
fore, an  ar^ini>nt  that  the  words  ought  not  to  he  in  the  Connti- 
tution;  IxwaiiHe  if  thej*  are,  and  have  any  nteaninii,  they  enlarge 
it  tierond  the  Hcope  of  certain  other  ennmcmtvd  pun-crs,  and  this 
ia  hoth  misehioTous  and  dangerotu.  Bcin)!  in  the  Constitution, 
they  »pc  to  be  deemed  ror  *(  preterea  nihil,  an  empty  sound  and 
vain  phrascolofiT,  a  finger-hoard  pointing  to  other  jiowcr*,  but 
hanng  no  use  whutiweTOr  sinoc  thciM!  powers  arc  sufficientlr  ap- 
parent without.'  Now,  it  is  not  too  much  to  sny.  that  in  a  con- 
etilutiou  of  governnieut,  frHmed  and  adopted  by  the  |>ovple,  it  is 
a  most  uuJMetifiablc  latitude  of  interf>rotAtloR  tt>  deny  effect  to 
any  clause,  if  il  is  sensible  in  the  language  in  which  it  is  ex- 
prcMcd,  and  in  the  place  in  which  it  8tiind».  If  words  are  in- 
serted, we  arc  Imund  to  presame  that  they  have  some  definite 
object  and  intent;  and  to  reason  them  out  of  the  OonRlitntion 
\i\xm  arguments  ab  inconitnienti  (whieh  to  one  mind  may  ap> 
penr  wholly  unfounded,  and  to  another  wholly  satisfactory),  is  to 
make  a  new  constitittion,  not  to  construe  the  n)d  one.  It  is  to 
do  the  very  thing  which  is  so  often  complained  ot,  to  make  a 
constitution  to  suit  our  own  notions  and  wishes,  and  not  to  ad- 
minister or  construe  that  which  the  people  have  given  to  the 
country. 

§  920.  Ttut  what  is  the  argument,  when  it  is  thorooghly 
sifted  t  It  reasons  ujion  a  supjHtscd  dilemma,  njom  which  It  sus- 
pends the  advocates  of  the  two  contrasted  opinions.  H  the 
power  to  provide  for  the  common  defence  and  general  n-elfarc  is 
an  in(Iei)endent  power,  then  it  is  said  that  tlie  go»omment  is  un- 
limited, and  the  subsequent  enumeration  of  powers  '\i  unnecessary 
and  useless.  If  it  is  a  mere  sppL-ndngc  or  ipialification  ot  the 
power  to  lay  taxes,  still  it  involves  a  power  of  general  a[»i)ropri> 
atinn  of  the  moneys  so  raised,  which  indirectly  produces  the 
same  result.'  Now,  the  former  position  may  be  safely  admitted 
to  be  true  by  those  who  do  not  deem  it  an  independent  power; 

*  t  EUiot*  Dtb  S38. 

«  la  *  Ddata  o(  Ttli  of  Pabnurr.  im  (4  EllleCi  IMl  SW),  Ur.  Mdiiwa  r«t* 
dnn  fnanirMUy  M  hX*  Mra  maitraetion)  "m  ■  tort  «r  Mptkm,  of  pntnl  <l«wti|>- 
tlon  td  lb*  ii[i«tlflr<l  powtn^  »»A  m  liiTiiig  au  farlher  moMiing.  uiil  gi*i^  d»  luntwr 
\«mtn,  (ku  *\al  u  bnnJ  in  Uut  ■pociflotJon."  Sx  «W  Mr.  Hadiun'i  T«la  om^ 
mg\  m  tW  Bask  Boniu  Bill.  Sd  Hanib,  1817.    4  ElUot'i  D<U  2S0,  2S1. 

•  1  EDiM'a  D«t>.  2S0,  !HJ. 


672 


C0S8TITCT1ON  OF  TOB  DSITH)  8TA«S.  [BOOK  HI. 


but  the  I&ttcr  positiou  is  not  a  just  concltmion  from  the  pivniiscs,^ 
which  it  aUitvs,  thut  it  i»  a  qunlified  power.     It  is  not  a  logical 
or  a  practical  seqncneo  from  Iho  piviiiisv»:  it  is  a  non  te^ttihir. 

§931.  A  dilemma,  of  a  wn-  dilTorent  iwrt,  mi^ht  lie  fatrlj 
put  to  tlioM  who  contend  for  the  doctrine,  that  the  w-orda  aru  not 
a  <)ualilication  of  the  [lOwer  to  lay  Uix<^a,  and,  indeed,  have  no 
nHmniMg  or  u»e  per  ne.  The  words  arc  found  in  the  claniie  re- 
apecting  taxation,  and  as  a  part  of  that  clauae.  H  the  powor  to 
tax  extcndn  fliniply  to  the  payment  of  the  dehtR  of  the  Unitnl 
States,  then  Congress  haa  no  power  to  lay  any  taxes  for  an/  other 
purpose.  If  ao,  then  Congress  could  not  appropriate  the  money 
raised  to  any  other  purposes;  since  the  restriction  is  to  taxes  for 
payment  of  the  dehts  of  the  United  States,  that  is,  of  the  dehta 
then  eziating.  This  would  he  alnitmt  aluiurd.  If,  on  tJie  other 
hand.  Congress  have  a  right  to  lay  taxes  and  appropriate  the 
money  to  any  other  objects,  it  must  be  because  the  wonis,  **  to 
provide  for  the  common  defence  and  gottera)  welfare,"  authoriu 
it,  by  enlar^Df;  the  {lower  to  those  objects;  fur  there  are  no  other 
words  whioh  belong  to  the  clause.  All  the  powers  are  in  distinct 
clauflOA,  and  do  not  touch  taxatiMt.  Xo  advocate  for  the  doc*^ 
trine  of  a  restrictive  power  wilt  contend,  that  the  (tower  to  \%y 
taxes  to  pay  dfhl»  authorizM  the  payment  of  all  dobts  which  tba; 
United  States  may  choose  to  incur,  whifther  for  national  or  con- , 
stitutiunal  objects,  or  not  Tb«  words,  "to  pay  dcbta,"  are 
therefore  either  antovedent  debts,  or  debts  to  be  incurred  "for 
the  common  defence  and  general  welfare,"  which  will  justify 
Congress  iu  incurring  any  delfts  for  such  purposea  Bat  the  lan> 
guage  is  nut  confmed  to  the  payment  of  debts  for  the  ciimmoa^ 
defence  and  general  welfare.  It  is  not  "to  i»ay  the  debts " 
merely,  but  "  to  provide  for  tlie  COtnmoo  defence  and  general 
welfare."  That  is,  Congress  may  lay  taxes  to  provide  means  for 
the  common  defence  and  general  welfare.  i>o  that  there  is  a 
difficulty  in  rejecting  one  part  of  the  qualifying  clausu  withoitt 
rcjcctinff  the  whoie^  or  enlarging  the  words  for  some  purpoacs 
and  restricting  them  for  others. 

§  922.  A  pon'er  to  lay  taxes  for  any  purpome  whataoerer  la  a 
general  power;  a  power  to  lay  taxes  for  eertain  siierified  pur- 
pose* is  a  limited  power.  A  power  to  lay  taxes  for  the  common 
defence  and  general  welfare  of  the  United  Stales  is  not  in  com- 
mon senae  a  general  power.     It  in  limited  (o  those  objecta.     It 


CQ.  XJT.I  POWBBS  OP  OOKflnBSB  —  TAXES.  678 

cannot  eorwttiutioitally  fran^ccira^heinr  It  tm^  defence  proposed 
by  ft  tax  be  not  the  ooronion  defenceVn  the  Unif^i  •Sldti.'s,  if  tlie 
welfare  be  not  general,  but  npecial,  or  local,  as  coutradUtin- 
^isbed  from  national,  it  is  not  within  the  scojk!  of  the  Con«t(tu- 
tion.  If  the  tax  be  not  propoBed  for  the  common  defence,  or 
{general  welfare,  but  for  other  objocta,  whoUj  extrancouA  (ag, 
for  instanre,  for  propajratinK  Mabomi-tonisni  among  the  I'urks, 
or  ^iviutr  aida  and  subsidica  to  a  foreign  nation,  to  build  {Mtlaccs 
for  its  kings,  or  erect  monumenbi  to  its  heroes),  it  would  bo 
wholly  iDdcfensible  upon  constitutional  principles.  The  power, 
tJien,  is,  onder  such  ci rcmustanccs,  necessarily  a  quulitied  jHiwer. 
U  it  is  80,  liow  then  does  it  affoct  or  ia  Um  slightest  degreo 
trcncli  uiK>n  the  other  enumerated  powers  1  No  ouc  will  pretend 
that  till-  )>uwi;r  to  lay  taxes  would,  in  general,  have  supcraoded 
or  t«ad«rud  tuuioocssarj  all  Uto  otlicr  enumerated  powers.  It 
would  neither  enlarge  nor  qualify  them.  A  pijwer  to  tax  does 
not  include  tht-iiL  Nor  would  they  (as  uiihai>pily  the  cunfedera- 
tlou  too  clearly  demonstrated),'  necessarily  include  a  power  to 
tax.  Each  has  its  appropriate  of&ix  and  objects;  each  may  ex- 
ist witlioiit  necessarily  interfering  with  or  annihilating  the  otlicr. 
No  one  will  pretend  that  the  power  to  lay  a  tax  necessarily  in- 
cludes the  power  to  declare  war,  to  p«sa  naturalization  and  bank- 
rupt laws,  to  coin  money,  to  establish  post-oflices,  or  to  defius 
pirteicfl  sod  felonies  on  tLe  high  seas.  Nor  would  either  o( 
these  be  deemed  necessarily  to  include  the  power  to  tax.  It  might 
be  convenient ;  but  it  would  not  be  alisolutcly.  indispensable. 

§  923.  The  whole  of  the  e1a)>orate  reasoning  upon  the  propri- 
ety of  grantinti  llie  power  of  taxation,  pressed  with  so  much  abiU 
ity  and  eamealness,  Iioth  in  and  out  of  the  eunveutioo,*  as  vital  to 
tliB  operations  of  the  national  goTemmvut,  would  have  lieen  use- 
lees,  and  almost  absurd,  if  the  power  was  included  ill  the  sohse- 
qnently  enumerated  powers.  If  the  power  of  taxing  was  to  be 
granted,  why  shuuld  it  not  be  qualified  accurding  to  the  inten- 
tion of  the  framers  of  the  Constitution?  But  then,  it  is  said,  if 
Congress  may  lay  taxes  for  the  common  defence  and  general  vrel- 
fai^  the  money  maybe  appropriated  for  Uni^e  |>ur)ioiM:s(,  although 
not  within  the  scope  of  the  other  enumerated  powers-  Certainly, 
It  may  be  so  appropriated ;  for  if  ('ougress  is  authorized  to  lay 

>  !lf«  Th<!  rKl«niliit,  Not.  SI.  S3.  80 :  1  BUiot'i  DiUlw,  >18. 
*  8m  The  redcnUrt,  N<«.  SO  to  S7. 


674 


COKSTITUnOS  OP  THE   DNITED  0TATGK.  [BOOK  tBi 


t»xe8  for  Ruoh  purpoAra,  it  would  be  strange,  if,  when  ntiaed, 
the  money  could  not  be  applied  to  tliem.  That  would  be  to  give 
a  powor  for  a  certain  end,  and  th<>n  deny  tlie  end  intended  by  tb« 
p«w«r.  It  ift  added,  "that  there  is  not  a  tiingle  powor  whatito- 
ever,  which  may  nut  have  some  rcfcrt^nce  to  the  oommon  dufeuct; 
or  general  welfare;  nor  a  power  of  any  magnitude,  which,  iu  its 
exercinc,  docs  not  involve  or  admit  an  application  of  money,  "j 
If  by  the  formor  Ittnguagc  is  meant  that  there  18  not  any  |Miwc 
belonging  or  incident  to  ouy  government  which  has  not  »omc  ref- 
orcncu  to  thf  cunimon  defence  or  general  w<'Ifare,  the  proposition 
may  bi;  pcrcinplorily  denied.  Many  goTernnient*  pomess  pi*w- 
era  which  Imve  no  application  to  either  of  these  objects  in  a  ju»t 
een^c;  and  some  pu88v«a  powers  repugnant  to  Imth.  If  it 
meant  that  there  i«  no  power  belonging  or  incident  to  a  good  gov^^ 
emment,  and  especially  to  a  republican  goremmcuts  which  may 
not  have  some  reference  to  those  objects,  that  proposition  may  or 
may  not  be  tmc :  but  it  has  nothing  to  do  with  the  present  in- 
quiry. The  only  question  is,  whether  a  mere  power  to  lay  taxes, 
and  approjirialc  money  for  tho  «)mmon  defence  and  i^neml  wel- 
hrt,  dooK  include  all  Uio  other  powers  of  goveruraeut;  or  pt"en 
docs  include  tlie  other  enumerated  powers  {limited  a^i  they  are) 
of  the  uationnl  government.  No  person  can  answer  in  the  affina- 
tttive  to  cither  part  of  the  inquiry  who  haa  fully  connidercd 
subject.  The  power  of  taxation  ia  but  one  of  a  multitude 
fMwers  belonging  to  governments;  to  the  State  gorenunenta  as 
well  OM  tlie  national  goremmcnt.  Would  a  power  to  tax  author- 
ize a  State  govennnent  to  regulate  tho  descent  and  diatributiuo 
of  estates;  to  prescribe  the  form  of  conveyances;  (o  estahltah 
courla  of  justice  for  general  purposes;  to  legislate  res}wctiugi 
personal  rights,  or  the  general  dominion  of  property;  or  to 
ish  all  offences  against  society  ?  Would  it  confide  to  Cougrew 
the  power  to  jrrant  patent  rights  for  invention;  to  prorido  fo 
counterfeiting  tbe  public  wcuritics  and  coin;  to  constttui*-  judi- 
cial tribunal:i  with  the  powers  confided  by  the  tliird  article  of 
the  Constitution;  to  detilare  war,  and  raise  armii^s  and  nnrivatf 
and  make  regulations  for  their  govcminent ;  to  exercise  exclit 
sire  legislation  in  tbe  territories  of  the  Unit«d  States,  or  in  otJier 
ceded  places;  or  to  make  all  laws  neccssari'  and  prfifxtr  U\  ivtrr 
into  effect  all  tho  powers  giren  by  the  Constitution  !  The  tJon-1 
stitution  ttiiclf  upon  ita  face  refutes  any  such  notion.     It  gives 


CH.  XIV.] 


POWERS  or  COKflRBSS  —  TAXB. 


«T6 


th«  power  to  tax,  as  a  nulntantivn  power;   and  givee  others  u 
«i{ually  substantive  lUtd  indcitendGiiL 

§  924.  That  the  same  moans  m&y  sometimea  or  oftea  be  re- 
sorted to^  to  cttrrr  into  effect  tlic  dififercnt  powem,  furnishes  no 
objection;  for  that  ia  common  tu  all  ^vernmvula.  That  on  ap- 
propriation  of  munc}-  mil}'  be  the  iwual  or  best  mode  of  carrying 
into  effect  sunie  uf  tliMb  iiowers,  furnishes  nu  ol>jcclion:  for  it  is 
one  uf  tile  pur]KM(ii  for  wtiich  lite  nrjrunient  iUelf  admits  t)mt 
the  power  of  taxation  is  girco.  That  it  is  indisiiensable  fur  tbe 
due  exerciso  of  all  Iho  powi-rM  may  admit  uf  some  doubt.  Tbe 
onljr  real  question  is,  whether,  even  admitting;  tbe  jwwer  to  la; 
taxes  is  appropriate  for  some  of  tbe  purposes  of  other  cnumor- 
uted  puweni  (for  no  one  wtU  contend  tbut  it  will,  of  itself,  reach 
or  provide  fur  them  all),  it  \»  limited  tu  siidi  upprnprintiunM  as 
frruw  out  of  tbe  exercise  of  those  powers.  In  other  words,  whether 
it  is  an  incident  to  those  powers,  or  n  substantive  power  in  other 
cuses,  which  may  concern  the  common  defence  and  the  general 
welfare.  If  there  are  no  other  cafteB  which  concern  the  common 
defonoc  and  general  welfare,  except  Diose  within  tho  scope  of  the 
other  enumerated  powers,  the  discussion  is  merely  nominal  and 
frivolous.  If  there  are  such  casea,  who  is  at  litierty  to  say  that, 
being  for  the  common  defence  and  general  welfare,  the  Constitu* 
tion  did  not  intend  to  embrace  them  ?  The  preamble  of  the  Con* 
stitution  declares  one  of  the  objects  to  bo,  to  provide  for  the 
common  defence  and  to  promote  the  ^neral  welfare ;  and  if  the 
power  to  Inr  taxes  is  in  express  termii  piven  to  provide  for  the 
common  deleneo  and  general  welfare,  what  ground  can  there  be 
to  construe  the  power  short  of  the  object,  — to  suy  that  it  shall 
I>e  merely  auxiliary  to  other  enumerated  poweis,  and  not  coex- 
tensive with  its  own  terms  and  its  avowed  objects?  One  of  the 
best  cstablislted  rales  of  inier|)retation,  one  which  cominon-scDse 
and  reiiaou  forbid  us  to  overlook,  is,  lliat  wlien  the  obji-ct.  of  a 
power  is  clearly  defined  by  its  terms,  or  avoweil  in  tlic  contest, 
It  ought  to  be  oonstnied  so  as  to  oMain  the  object,  and  not  to  do- 
feat  it.  Tlio  circumstance  that,  so  oonstrvcl,  the  power  may  be 
abused,  ia  no  answer.  Alt  powers  may  be  abused;  b<it  ore  the,r 
then  to  bo  abridged  by  those  who  are  to  administer  them,  or  de- 
nied to  have  any  operation  ?  H  the  people  frame  a  constitnli<in, 
the  ruleni  are  to  obey  it  Neither  rulers  nor  any  other  function- 
aries, much  less  any  private  iiersons,  hare  a  right  to  cripple  it, 


676 


coK8Tmraos  of  toe  ositko  states.        [book  nL 


becaiuo  it  Ib,  uccordiug  to  Uieir  oven  views,  incoavcnicnt  or  dao- 
t^crouK,  unwise  or  impolitic,  of  narrow  limits  or  of  wide  influcocc. 
§  925.    Be«idc8,  tlic  argument  itself  admittt,  tbat  "  Congress  is 
uutliorizcd  to  provide  uionej'  for  the  common  <lcfence  &nA  geoeml 
welfare."    It  is  not  pretended  that,  when  the  tax  is  laid,  the 
q>cci(ic  objects  for  which  it  is  laid  are  to  be  Apecifiod,  or  that 
is  to  be  solely  applied  to  tliose  objects.     That  would  \k  to 
a  limitation  nowbcrc  stated  in  the  text     But  it  is  said,  that  it 
mu»t  be  applied  to  the  frciKTal  welfare;  and  that  can  only  liO  lij 
an  applic'iitiuu  of  it  tu  huiuu  pardeular  meaturt  cooducive  to  tt 
generul  welfai-e.     Tliix  is  admitted.     But  then,  it  is  added,  that 
tJiis  particular  measure  must  be  within  tlie  rnumerate<t  authnri.^ 
ties  vcst«d  in  Congress  (that  is,  within  some  of  the  powers  nc 
embraced  in  the  fir^it  clauseX  otherwise  the  application  Is  not 
authorised. '    Why  not,  since  it  is  for  the  general  welfare  ?    No 
reason  is  assigned,  eicccpt  that,  not  being  within  the  scope  i^ 
thoAo  enumerated  poweri«,  it  is  not  given  by  the  Constitution. 
Now,  the  premises  may  be  true,  hot  the  conelimion  diiea  not  fol 
low,  unless  the  words  comm<m  defence  and  gemral  warfare  an'* 
limited  to  the  speciltcations  included  in  those  powers.     So  that, 
aft«r  all,  wo  are  ted  back  to  tlie  some  reastHting,  which  con- 
struoa  the  words  as  having  no  meaning  ptr  te,  but  as  dopeodent  j 
upon,  and  an  exponent  of,  the  enumerated  jiowers.     Now,  thii 
conclusion  is  not  justiliod  by  the  natural  connection  or  colloca> 
ti(Hi  of  the  words;  and  it  strips  them  of  all  reasonable  force  and 
efficacy.     And  yet  we  are  told  that  '*this  fair  and  obvioiui  inter*' 
prctatton  coincides  with,  and  is  enforced  by,  the  clause  of  the 
Constitution  which  provides  that  no  money  »hall  be  drawn  from 
tiie  treasury,  but  in  consequence  of  appropriations  by  law;"  as 
if  the  clause  did  not  equally  apply,  as  a  restraint  upon  drawing 
money,   whichever  construction   is   adopted.     Suppose  Congress. 
to  possess  the  most  imlimited  power  to  appropriate  money  for  the  i 
general  welfare,  would  it  not  be  still  true  that  it  conld  not  be 
drawn   from  the  treasury,   tmtil  an  appropriation  was  made  by 
some  law  passed  by  Congress  f    This  lust  clause  is  u  limitation, 
not  upon  the  powers  of  Congross,  but  npon  Uio  acts  of  the  oxocn- 
live,  and  other  public  officers,  in  regard  to  tlie  public  moneys  in 
the  treasury. 

926.    The  argument  in  favor  of  the  construction  which 

>  Sm  alM  4  BUM'S  D«b<a^  380,  2SL 


ca.  ht.] 


^Mti 


OP  ooNoiuGss— Tins. 


677 


the  clause  as  a  C|Qali  fixation  of  the  power  to  lay  taxes,  has,  per- 
ha|iA,  ntvcr  h<hMi  preaented  in  a  more  conciae  or  forcible  aliapo 
than  in  an  oStcial  opinion  deliberately  given  by  one  of  our  uioiet 
difltiii^iisliL>d  statranienJ  "To  lay  taxes  to  provide  for  the  gen- 
rai  wflfure  of  thf  Uiiit«d  States  is,"  says  he,  "to  lay  taxes  for 
the  purpoif  of  providing  for  tbw  gwieral  welfare.  For  the  laying 
of  taxes  {g  the  power^  and  the  general  welfare  the  purpote,  for 
which  the  power  is  to  \»!  escreisod.  Congrues  aru  nut  to  lay 
taxes  ad  libitum,  for  any  purpose  they  pleiuc ;  but  only  to  pay 
the  debts,  or  provide  for  the  welfare  of  the  Union.  In  like  man- 
ner they  are  not  to  du  anytliing  they  please  to  provide  for  the 
general  welfare,  but  only  to  lay  taxea  for  tliat  purpose  To  con- 
sider the  latter  plinwe  not  as  describing  the  purpose  of  the  firat, 
but  as  giving  a  diittinrt  and  independent  power  to  do  any  act 
they  please  which  might  be  for  the  good  of  the  Union,  would 
render  all  the  precedino;  and  aubfiequcnt  enumerations  of  power 
completely  useless.  It  would  reduce  the  whole  imitrunient  to  a 
single  phrase,  that  of  inatituting  a  congress  with  power  to  do 
whatever  would  bo  for  the  good  of  the  United  States;  and,  as 
they  would  be  the  sole  judges  of  the  good  or  evil,  it  would  alao 
be  a  power  to  do  whatever  evil  they  pleased.  It  ia  an  estabiished 
nile  of  construction,  where  a  phraae  will  hear  either  of  two  mean- 
ings, to  give  that  which  will  allow  sonic  meaning  to  the  otlier 
parts  of  the  instrument,  and  not  that  which  will  render  all  the 
others  useless.  Certainly,  no  such  universal  power  waa  meant 
to  be  given  them.  It  was  intended  to  laco  them  up  strictly 
within  the  enumerated  powers,  and  those  withmit  which,  as 
means,  those  irawera  could  not  be  carried  into  effect "  * 

§  927.  The  same  opinion  has  been  malulained  at  different  and 
distant  timea  by  many  emiueut  statesmen.'    It  was  avowed  and 

'  Ur.  JtSatcm. 

*  Jcftnm'*  opbilM)  en  tlw  Buik  of  Jii  United  SMm^  19th  P«brav7.  ini ;  4 
Jdhrwii'i  CormpooilMin,  SM.  51S.  T)  ui  o[riiiliHi  wm  <idi1i«nlBlr  mmutei  bj  Mr. 
JelTenon  an  other  wcuionk,  Tltn  n»T,  prrb*))*,  hIiki  t»  teani  inttn  it  *n  opinion 
itfll  VNTo  rortriotln  In  bU  Uter  vrtticgi ;  bat  Uiey  ■»  very  obKsn  ftn<l  vnnihfoc- 
lorr.  Bmi3*lbruM'*CommpaaAr»f..3ll«,tlt,ti7:  HcoMp  of  PraiUiait  JfflMOoa. 
Ell  DtmnlMr,  18M  i  G  Vtlt'iSute  ^H^  469.  US,  409. 

■  It  wwi  ottinuiBMl  tiy  Mr.  Ilimll  on,  Is  til*  Tnuary  Report  on  Muinfamn*  (&lh 
J*f.  lTfl\  ukI  in  hit  argamoDl  oi  tb*  oonrtlutloMlitr  of  ■  Xmiinaid  Bo&k,  :>4 
F«b.  I7>1.  yp.  W,  lU  ;  bjr  Mr,  Gnrrj  in  Uh  MmU  <m  Ihp  Kxlonat  Bonk  In  F'h. 
1TBI.  i  RIliM'i  Drbatoo,  8M ;  bj  Ur.  EUoirorll!  in  ■  ipiwh  in  1TS8,  S  Auioricn 
MuMnn,  S88;  oad  bj  Pmidnt  Uoora  in  bU  Uern*^  of  Um  4Ui  <«  May.  ISO, 


6T8 


CONSriTDtlON  OP  THE  WSI 


[BOOK  in. 


apparently  ac(iui«8«cd  in,  In  the  stated  conventions  called  to 
ratify  the  Constitution;'  aiid  it  has  been,  on  mrious  occasiuiu, 
adopted  hy  Cungrctu),'  uid  may  fairly  be  deemed  that  which  tho 
deliberate  aen»e  of  a  majority  of  the  nation  has  at  all  linien  sup- 
ported. This,  too,  aeeins  to  be  the  construction  maintained  by 
the  Supreme  Court  of  the  United  Htatca.  In  the  case  of  Gibbons 
V.  Ogden,*  Mr.  Chief  Justice  Marshall,  in  delircring  the  opiniun 
of  the  court,  »aid,  "ConKfcsa  is  authorized  to  lay  and  collect 
taxes,  ct«.,  to  pay  the  dcbta  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  Stated.  This  docs  not  inter- 
fere with  the  power  uf  the  States  to  tux  for  the  aiip|K)rt  of  their 
own  governments;  nor  la  the  exercise  of  that  power  by  the  State* 
an  exercise  of  any  portion  of  the  power  tJiat  is  granted  to  the 
United  States.  In  imposing  taxea  for  State  puriiOMea  thoy  aru 
not  doing  what  CongrcM  i»  empowered  to  do.  Congress  ia  m* 
empowered  to  tax  fur  thotic  purjKMcs  which  are  within  the  exclu- 
sive provinc*!  of  llie  Stalv*.  When,  then,  each  govenimeut  la 
exercising  the  power  of  taxatiou,  neither  is  exercising  Uie  power 
of  the  other."  Under  such  circtmistnuces  it  ia  not,  perhaps,  too 
nnich  to  contend  that  it  iii  the  truest,  the  safest,  and  the  most 
authoritative  construction  of  the  ConstitutioiL* 

§  'J'2S.  The  view  thus  taken  uf  this  clause  of  the  Canatitation 
will  receive  some  confirmation  (if  it  aliouM  be  thought  by  any 
person  necessary)  by  an  historical  examination  of  the  proceed- 
ings of  the  Gonreotion.     The  first  resolution  adopted  by  tlie  ood- 

{pp.  SS  to  S9).  in  ui  cUbotato  umttnicttt  whidi  w«l]  i»Mm»  to  In  sluilj*!  Ua  eon- 
Uuda,  ttuit  lb*  fncn  to  Uy  Uira  U  <»nfiii«d  to  {nu^ows  fn  tbn  commw  ilcfaiM  huI 
gpODTil  vcUu*.  And  that  the  |<ow«r  ol  nfiiiropTutipn  cf  tbt  mumey  U  totacteadn^ 
llut  U,  that  it  our  be  apptinl  to  tnj  putpeoea  of  tbo  OMntwn  AntntuK  ar  (guncrd 
valOrr.  Mr.  Aduox  in  hi*  l^ttrt  to  Mr.  Spnlcer  StovmMM,  lltb  of  July,  IBSX 
publbbBd  line*  the  prDptratioii  of  th«<«  ComatratMiaik  bn  gltni  •  nMlntj  eX|i»- 
rition  et  th«  r^nir,  to  vhkb  <t  nwy  bo  tmpoflitat  litrtarin-  igun  to  rear. 

I  9  Klliot'*  DaUl».  170.  I$J.  1».  S2S.  S14  ;  S  Klliol-*  Dctalci^  S<t3 ;  3  AmrIcu 
HatMin.  «3I ;  1  Elliot'.  DebaMi.  31 1  i  Id  SI .  S3 ;  S  Klltot'f  Dthilv.  aS2,  SM ;  S 
Ameriinn  Mtumm.  H4. 

'  S«  (MM  nfemd  to  in  Pmildaat  Maam't  Hb*m^  4th  el  U»j,  ItlS  g  1  lUcit'a 
CotBin.  leeL  pp.  ISO,  2S1  ;  4  Klliot's  Dvb.  3SS.  SI3.  SU.  370  to  S^S  j  liL  »1,  Ut  i  j 
S  rnit«d  SlalM  L»w  Jourti«l,  Agiril  ISSS.  pp.  903  to  2S0 ;  WrtMlar'i  SptwU*,  U»  U ' 
MI,  111,  119,  *•». 

>  »  Wb«L  R.  1.  IM. 

•  I  Kant'*  Comm.  Lcct  p.  2S1  ;  6arg«>iit  oa  OMMt.  U«,  ch.  Sg.  pp.  811  ta  IIS  t 
RawU  on  tlio  CkuiilitDtlaa,  cli.  1^  p.  IM ;  9  Unitad  StatM  Law  Jownial.  April,  )e9S, 
p|>.  3S1  i«  293. 


en.  XIV.] 


POWERS  OF  O0XOBE8S  —  TAXE& 


6T9 


vcntion  on  this  subject  of  the  powers  of  the  general  goverzuneat 
was,  "that  the  national  legialature  ought  to  bo  enipowerod  lO 
enjoy  the  legislative  righta  vested  in  Congress  by  the  confedera- 
tion, and  morouver  to  k-gieUtc  in  all  cases  to  wUich  the  separate 
States  aru  incompotvnt,  or  in  which  th<i  harmonjr  of  the  United 
•31aU'«  may  be  ititerruptod  by  tlic  excrci»»  of  indindiial  legisla* 
tioiL"'  At  a  sulttequeut  period,  the  latter  clause  woa  altered, 
so  as  to  read  tlius:  "And,  nioi-eovcr,  to  k^sIaU:  in  all  cases /or 
the  gentral  interettt  0/  tht  Union,  and  also  iu  tlioMC  to  which  the 
States  are  ai>[ittratcly  inooiupcteut,  or  in  which  the  harmony  of 
the  United  States  may  be  iut«rnipU:d  by  tiic  cxerciou  of  ludivid- 
ual  lcgi»latioii."*  When  the  iiriit  draft  of  the  Conalitutioa  u-as 
pre|)ared,  in  pursuance  of  Uio  ntsolutions  of  tlic  convention,  the 
clause  re^[)ect)ng  taxation  ()>eing  the  first  section  of  the  sewntli 
article)  stood  thus:  "The  legislature  of  the  United  States  shall 
have  the  power  to  lay  and  collect  taxes,  duties,  ini]>09ts,  and  ex* 
ciace,"  without  any  <{ualilicatioa  or  limitation  whatswvor. 

%  029.  Afterwardfl  a  motion  waa  made  to  refer  certain  propo* 
sitiona,  and  amcmg  others  a  pro]>ositiou  to  secure  the  payment  of 
the  public  dcitt,  and  to  apjiropriato  funda  exclusively  for  that 
purpose,  and  to  secure  the  public  creditors  from  a  viulatioo  of 
the  public  fntth,  w1h:u  pledged  by  the  authority  of  the  legisla- 
ture, to  a  select  committee  (of  five),  which  was  accordingljr 
done.*  Another  coumiitteo  (of  eleven)  was  appointed  at  the 
same  time,  to  consider  the  necessity  and  exp(.'diency  of  the  debts 
of  the  several  States  being  assumed  by  the  United  i^tutes.*  The 
latter  cotnmittee  rvportcd  that  ^'the  IvKisluturc  of  the  United 
Stales  shnll  have  power  to  fulfil  the  ciigugements  which  havo 
been  entered  into  by  Congress,  and  to  discharge  as  well  the  debts 
uf  tltc  United  States  as  the  debts  Incurred  by  the  several  States 
during  the  late  war,  for  the  common  defence  and  general  wel- 
fare" Tliis  proposition,  it  may  be  pmsumed,  has  no  reference 
whatsoever  to  the  clause  in  the  draft  of  the  CcHistitution  to  lay 
taxes.  The  former  committee  (of  Hvr)  at  a  later  day  reported 
that  there  should  bo  added  to  the  first  section  of  tlie  seventh  ar- 
ticle (tlie  t-laiise  to  lay  taxes)  tlic  following  words,  "  for  the  pay- 
ment of  the  df  bts  and  the  neocssary  expenses  of  tbe  United  States, 
provided,  that  no  law  for  raising  any  branch  of  revenuo,  exo^t 


■  Jaunt,  of  ConTPRticm,  «S,  80.  ST,  13S.  It& 

*  Id.  81,  leases.  ■  III.  241. 


« Ibid. 


680 


ooHSrmrnoK  op  thk  unitrd  states.         [book  iti. 


what  may  be  HpeciallT  appropriated  for  the  pajrment  of  interest 

on  debts  or  loaiia,  aball  continue  in  force  for  more  thao 

years."  '     It  was  then  qiovhI  to  amend  tht'  firet  claiiiie  o(  Uio  re-, 
port  of  the  other  comniittve  (on  State  debts),  so  ua  to  read  as 
follows:  "The  legislature  shall  fulfil  the  iuiK»gvi»ent8  and  dis- 
char(!:e  the  debts  of  the  United  Status,"  which  (aftvr  an  iiiefTect- 
ual  attempt  to  amend  by  striking  out  the  words,  *'dischai^e  tlie 
debts,"  and  inserting  the  wonla,  "liquidut«  the  claims")  (Mdued' 
unaiiimously  in  the  alVirmative.'    Ha  tliat  the  provision  to  the] 
report,  to  assume  tlio  Stikte  debts,  was  struck  out.     On  a  subse- 
quent day  it  was  moved  to  amend  tlie  first  section  of  the  seventh 
article,  so  as  to  read:  **Th«  legislature  shall  fullil  the  enga)e;e-- 
meuts,  and  dischurgo  the  debts  of  the  United  Slates,  and  shall 
have  power  to  lay  and  collect  taxes,  duties,  impoatfl,  and  ex- 
cises," which  passed  in  the  aflirmative;*  tliiis  incnrpamting  the 
amendment  already  staled  with  the  clause  reapecting  taxes  in 
the  draft  of  the  CoUittitution.     On  a  subseijuent  day  the  followr- 
ing  clause  was  proposed  and  agreed  to:  "All  debta  contracted 
and  engagcmenta  eniei-ed  into  by  or  under  the  authority  of  Con- 
gress shall  bo  as  valid  againitt  the  United  Stales  under  this  Con- 
fttitiition  a«  under  the  coofederatioo."    Ou  tlie  same  day,  and 
after  the  adoption  of  this  amendment,  it  was  proposed  to  add  (o^ 
tho  first  clause  of  the  first  section  of  the  seventh  article  {to  lay 
taxes,  etc.)  the  following  words:  <*for  the  payment  of  said  debts, 
and  for  tho  defraying  the  expenses  tliat  shall  he  incurred  for  thftj 
common  defence  and  general  welfare,"  which  pasi^d  in  the  Qeg»- 
tive  by  the  vote  of  ten  States  against  one.*    So  that  the  whole 
clause  stood  without  any  further  amendment,  giving  the  power 
of  taxation  in  the  same  unlimited  terms  as  it  was  rep<irted  in 
the  original  draft  of  11>e  Constitution.     This  unlimited  extent  of 
the  power  of  taxation  seems  to  have  been  unnatinfactory ;  and  air  i 
a  Inter  day  another  committee  reported  that  the  clause  rcs^iect-^ 
fag  taxation  should  read  as  follows:  "Tlie  legislature  shall  have 
power  to  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to 
pay  the  debia  and  provide  for  the  common  defence  and  ■_-■  r.  -i 
welfare  of  the  United  States ;  **  and  this  passed  in  the  all. 
without  any  division.^    And  in  tho  final  draft  the  whole  clauM 
now  stands  thus:  "The  Congress,  etc.,  shall  have  power  to  lay 


'  Josni.  «l  CoDV(adol^  977. 
Md.  SI4.  t  Id.  »l. 


■  li.  179.  tM 

*  U.  >8),  an.  334. 


CM.  xir.] 


FOWSnS  OP  COKCRRW  —  TAXK9. 


681 


and  collect  faxes,  dutiefl,  impotitA,  and  excisea,  to  pay  the  debts 
and  provide  for  the  common  defence  and  general  welfare  of  the 
Ijnitod  States. " '  Prom  this  historical  Burrcy  it  is  apparent  that 
it  wu  first  broii|;ht  fonrard  in  cunnccfiuD  with  tliu  ]>otrcr  to  lay 
taxcfl;  tlint  it  wus  originally  uduptvd  as  a  qualifR-ation  or  limi- 
tutiun  of  the  objects  of  that  power;  and  that  it  was  not  discusscfl 
as  an  ludoiR-ndi'nt  puwcr,  or  ott  a  gviierul  phrow.-  pointiiif^  to  or 
conncctod  with  the  Hii)>8it4ueut  eiiumvrutc-d  jKiwers.  Th<;re  was 
another  unondracnt  proiMsed,  which  would  have  crested  a  gaa* 
pral  power  to  this  eff«:t,  but  it  was  never  adoptwl,  and  sevms 
silently  to  have  bceu  nbuudoned.' 

$  980.  liesidi's,  it  is  impracticable  in  grammatical  propriety 
to  xeparate  the  different  parts  of  the  latter  clause.  Tlie  words 
are,  "to  pay  the  debts,  and  provide  for  the  common  defence^" 
etc.  "To  pay  the  debts  "  cannot  b«  construed  as  an  independent 
power;  for  it  is  connected  with  the  other  by  the  copulative 
"and."  The  payment  of  the  antecedent  debts  of  the  United 
States  was  already  provided  for  by  a  dintJnct  article;*  and  the 
power  to  pay  future  det>ts  niiiat  necossarily  bo  implied  to  the  ex- 
tent to  which  they  could  constitutional ly  he  contracted;  and 
would  fall  within  the  purview  of  the  enumerated  power  to  pass 
all  laws  necessary  and  proper  to  carry  the  powers  given  by  the 
CotiHtitution  into  effect.  If,  then,  these  words  wore  and  ought 
to  tw  ro-id  as  a  part  of  the  preceding  power  to  lay  taxes,  and  in 
connection  with  it  {as  this  historical  review  estabUshes  beyond 
any  reasonable  controversy),  they  draw  the  other  words,  "and 
provide  for  the  common  defence,"  etc.,  with  them  into  the  same 
connection.  On  the  other  hand,  if  this  connection  be  onc«  ad- 
mitU'd,  it  would  b<r  almost  absord  to  contend,  that  "to  pay  the 
debts"  of  the  Uuitc-d  States  was  a  general  phrase,  which  pointed 
to  the  subsequeiit  eiiumoratud  powers,  and  was  qualified  by  them; 
and  yet,  as  a  part  of  the  very  clause^  we  are  not  at  litjerty  to 
disregard  it.  Ttie  truth  is,  as  tho  historical  review  also  proves, 
tliat  after  it  bad  been  decided  that  a  positive  power  to  pay  the 
public  debts  should  be  inserted  in  the  Constitution,  and  a  de-sIre 
had  been  evinced  to  introduce  some  restriction  upon  the  power 
to  lay  taxes,  in  order  to  allay  jealousies  and  suppress  alarms,  it 
was  (keeping  both  objects  in  view)  deemed  best  to  append  the 

>  Jniirn.  at  Coavrntloti,  UI,  858.  *  Id.  3JT. 

*  iimra.  of  OMventka,  S9L    Sm  kIm  tfat  OmrtiUtiaii.  Mt  t. 


682 


COKSTITUTION  OP  T0E  UNITED  STATES.  \W0K  HI. 


power  to  pay  th«  public  debts  to  th«  power  to  lay  taxes;  Bad' 
tlicn  to  udd  other  terms,  brcxid  enough  to  embraoo  all  the  other 
ptir[KWO«  coQt«mplatcd  by  the  Cottstittitioi).  Among  these  nooe 
were  more  appropriate  Uiaji  the  woi-ds  "common  defenee  and 
general  welfare,"  found  in  the;  Articles  of  Confederation,  and 
snbseiiiient ly  with  marked  emp^oitis  introduced  into  the  pt 
Me  of  tile  Comiiitution.  To  this  course  no  opposition  was  madOt ' 
because  it  satislied  t]i08«  who  wished  to  provide  pusitively  for 
the  public  dobta,  and  thomi  who  wisJied  to  ha^'ti  the  power  of  tax* 
ation  coextensive  with  all  constitutional  objuct»  and  powers.  In 
other  words,  it  conformed  to  the  spirit  of  thai  ro«oUitiou  of  the 
eonvoutioii,  which  authorized  Congress  "  to  legislate,  iu  all  ca»e«|  ■ 
for  the  general  intervsta  of  the  Union."  > 


)  Jwinwl  of  Convmtbn,  181.  tS2,  SOS.    The  kttcTof  Mr.  HadiMii  lo  Mr.  9to«w-1 
■on  of  2Ttli  Nov(anb«r,  1630,  oonuio*  nm  htitorial  mh^ImiJou  of  the  orfgia 
pr^gmi  or  lliia  datue,  Biibstaiiliallir  th«  niue  an  lliat  glir«n  aboTa.    Aftn  |«riulng  It^l 
I  imwivo  no  rMwo  to  ehattj^  tlw  (otrgoiiig  taMoniDg^    la  om  tt«i<«>:t,  Mr.  llwltitiaj 
Mcmii  to  labor  nodtf  a  mlitalie,  tumclj,  la  mppotiag  that  ibe  profmiitiaa  vl  the  IStk] 
of  AD|cB«t,  (o  add  lo  tha  pow«r  to  by  ttXM^  m  fnttoatiy  uoMiilcd  om  tfcs  S3d 
Anpitt,  the  wonlt^  "tor  Ilia  ]aynii!Dt  of  llw  debU  tad  for  dcfnyiBf  tha  dpaiun^ 
Uial  $ttMU  be  iiicumd  for  IIid  aomnMn  ddmce  anil  gononl  v«lfiu«,"  wm  nu«ot«il  i 
Mconnt  of  the  generality  ci  ttw  pbiaMalo||7'     The  knom  ojiiDHMa  of  wnna  of  I 
8lai«>,  vbich  voittl  in  the  noptiva  (CoiiiiMticul  alono  Totwd  In  tha  aSnnatin),  i 
tlut  {I  conlil  not  h»i«  btvn  r^vcUxl  on  tliia  acoonnt.     It  ia  tnoM  prebalil*  ibat  It 
KJaoted,  bMaau  il  containni  a  nalrietion  npoo  IIm  powir  to  tai ;  for  till*  | 
appear*  at  lli«t  lo  have  foasd  viibout  appodt[oa  in  Itt  k*''"*!  'omt.    Jmmal ' 
CoaTNtlioQ,  pp.  220,  -ta;,  £Si,  I>I.     It  may  bf  acopUbU  lo  the  gatml  ml«  I«] 
bare  th»  rMnulu  uf  thl«  vauNaUo  (talMmaa  In  U*  own  wwd*,  atwl  iWnfura  tb*y  i 
here  inatrW.     Atiai  giring  an  bictorioal  review  «f  the  origin  aoil^progms  Af  Iht 
whole  danic,  hr  layi :  — 

"  A  ipocial  pravkioii  in  that  med*  OMibl  not  liam  bran  nuttaiary  for  llw  dobta  at] 
tiM  new  CoiijrrvM ;  fcr  a  (wwar  to  provide  Money,  iwd  a  powor  to  ptifcim  outaln  mM^ 
of  whicli  moor]?  ia  th*  onliiaary  aAil  ■ppcopiat«  tnnuia,  miiM,  of  «a(trw%  nrry  with 
tlieoi  a  powar  to  fay  the  exfenae  of  performing  the  wta.  Nor  waa  any  »|wcial  t<R>- 
riiion  for  dobti  prapowd,  till  the  oiae  of  the  pefohitlanarr  debta  wu  brnif^  fato 
view ;  and  it  ia  a  (air  pmninptkni,  ftom  the  eonm  of  tiM  varied  |a«pa«tian*  wlri^  j 
liave  been  noticed,  that,  bit  br  the  old  dobte,  asd  tlwlr  auodatlmi  with  Iht 
'  OMunon  d«r«n««  and  geaeral  wslfan,'  the  tlatue  would  have  rmulikol  aa  mpirliid  In 
Uie  Hn>  dnn  of  «  eonatiUtloa,  Mprawing  goinalty  *  a  pnw«r  in  (.vai|tr«u  to  lay  and 
toUevt  taxea,  dutite^  impeeti;  and  axdMa  ;*  willioot  any  aJ4itian  of  the  (dinua  *  I* 
provide  for  the  eooMHOii  debate  and  gtawial  velfarv.'  With  tfai>  >ilditi"n,  in<)-n],  tlie 
jangnage  ot  the  elauat  bttng  in  conEotmity  with  that  of  the  otanae  in 
Confnderallnn,  it  woold  bo  qnaltflad,  aa  in  ihnwaillelM,  hr  tha  tpccir 
an1^i>fit  to  it.  Rnt  llioi*  i»  antttieat  reMon  to  anpiiow  tkat  lt»>  tiTtn"  : 
woold  not  hava  hmt  intnidncad,  bat  for  tho  inlreduclioa  o(  (ho  old  il. .  .,  .j 
wUoh  tbey  happened  to  ataad  in  4  bmiUu'  though  bopentiva  nhtisiit    Tluu  lif 


POWnS  OP  COKGKEBS  — TAXES. 


688 


CU.  XiV.] 

°^981.    Having  tbu«  diapoMd  of  tlio  question,  vbot  is  the  Inie 
[Qtvrprctatioii  of  Uie  clause,  at  it  staudit  in  the  text  of  Uie  Cqq- 


tmliHMl,  liowcTcr,  th»r  put  nii^ialurtiMl  tkron^  Uw  niUajuaut  aUgo*  ot  tlw 
Coutilntian.  J|^k 

"  If  it  be  ukcd,  wbjr  Uw  Um*  '  mi^^^bAom  «iid  ipnonl  mlhtc,'  If  »M  neut 
to  OMiTty  thfl  camiinbtaiin  power,  «U^^^  lUemlly,  tluff  eipraM,  mn  LOl  qMl- 
Uied  auil  aipUiMU  by  *«>ini>  rtbrnoc*  l«  Uw  ptrtknUr  [khmt  sutyuiMi,  Uu  animr  i* 
U  hanl.  that  alUnu^  It  might  casUy  hart  bveq  iloue,  aoil  cxpnionM  ah«iri  it  miglrt 
bo  «r<ll  if  it  htd  bean  ikniv  yet  (ho  omUon  u  (oMWiitod  (or  by  oa  iiutUBtioa  to  the 
pLfanologf,  onnwIpMil,  doabU«Hi  by  iiUnUty  wiUi  ibt  hwniliw  chontrtw  at«chod  to 
it  in  Uw  iutruBMnt  ttnat  wbkk  it  wu  bomnrtd. 

"  il«t  dwy  tt  not  b«  Mitnl  witk  Uilliiiuly  uom  pro{ffiMy,  ftnil  witbout  the  jKHd* 
bUi^  of  *  MtMkiotT  uumr,  why,  if  the  t«nm  wm  mouit  to  cmbneo  »ot  oaly  «U 
the  po««n  patticuUily  cipmn«l,  but  the  imltfiDitc  ponr  wttich  htm  bout  dalinod 
nixUr  them,  Uib  inbiiilioD  >at  >ot  w  dodarod  ;  vhy,  on  tkt  oapiNdUao,  M  mauh 
critiiaJ  labor  w«*  Muplojod  In  MitinoKtlng  tlw  |ionIculif  [lOwoKi  oud  in  dtttning  oad 
liButing  their  uteot  I 

"  Tbe  TUMtJOM  aod  TidHltwls*  in  the  meiilntiw  of  tho  duito  in  whldi  ttw 
toiaa  'ceaunun  dchttco  aad  gnwiml  wolhre'  atifNW  an  ranuikabU;  anil  to  ho  no 
oUwrwlio  oxjilainMl  than  by  diflitftncca  of  ofHnioM  tontwiitiig  tb«  noMuily  m  ihv  tona 
of  >  couxUtuUoiia]  ptnvUob  (or  tlw  dcbt«  of  tbe  Uvratulian  ;  aoma  el  tlw  Bonbon 
•ppniuuiilinff  imprapcc  claim*  for  loaaoa  by  drpnciotcd  btlli  <4  cndit ;  othcn,  on 
OTMum  of  ptnpBT  ebinu.  If  not  pontipely  brought  wiiliia  the  autboriMd  fnactiooi  of 
tho  now  gontament ;  and  otlwn,  opin,  raiuidcnog  tho  put  lUila  of  the  Unil*d 
Btato*  ■•  vulIlriFully  Mvurtd  hf  Uw  priui'ipln  tlut  uu  chiwp  in  the  eoiYranwnt  couM 
chaagt  Um  obligalion*  of  the  Mlkn.  Boaddoa  tho  indioatioiw  is  tho  Jonnial,  tlw 
blUotj  of  Uw  period  eanoUono  thi*  uplanatiou- 

"  Bnt  It  ii  lo  bo  (nphalically  remorlcfd.  that,  in  the  BnlUt»do  of  morion^  fir«po- 
riUOM,  anil  ontMlaM*!*,  thin  u  bot  a  linglo  omo  bating  tefetenM  1»  Uu  lenna 
'conimow  Mtmtt  and  pneml  w«lCw%'  itnloM  we  wen  to  to  undantand  tho  ptofioM- 
tion  fowtaining  tkem,  made  ow  Angwt  SSlfa,  wUcb  was  diMgyood  to  by  all  Uw  tiUtoi 
except  OMk 

"TboobviMM<anclaiioB  to  which  wo  an  bran^t  14  that  tlieae  t«ca>,  copied  fnnn 
tho  Artldw  of  ConCnlontlim.  w«r«  TmanM  In  the  now,  •«  ta  the  old  iutnuneot, 
nionly  m  K«nvrat  tttnl^  uxphilBed  and  limited  by  Uia  mil|)olMd  apociflatiom,  and 
thrrefora  n<)uinn)(  m>  oriticnl  atUmtbo  a  sliuliod  precastioa. 

"  If  the  jiKtiM  of  the  RTolotkaiarj  Coognia  bo  filouled  in  op|Mitlaw  t«  Ihia 
rlov  of  the  tue,  tbo  pleo  i*  root  by  Uu  notarioty,  that,  on  Hvoeal  onoaala,  Iho  pmc- 
tier  of  thai  lolly  la  bot  tbe  eipoaitor  of  tlw  '  Attkleo  o(  Confodontioit.'  Hmw 
•nlrlni  wen  not  in  foroe  tUl  they  «cra  Anally  ratUled  by  Hjuyland  la  17S1.  fnor 
to  thai  riflnl  tbe  fount  of  OonfinM  wm  iniMund  by  tbo  osigonoio*  of  Iho  war, 
■nil  dorivnl  iti  mmlkn  frsM  Iho  aequicaccnoe  of  the  State*.  Aftoi  that  erant,  haUl, 
and  N  eontianed  azpodiency,  aHioantiag  olfait  to  •  real  or  apparent  oaceMity,  prokopJ 
tha  extndaa  tl  an  nadeflaed  ontbority,  which  wm  tho  ■«■  nadUy  ontleoked,  an  tho 
■neniUra  «f  Ibe  body  hetd  their  aeata  darlnff  rdeanm,  m  It*  acle,  parUcukrly  after  tho 
hfbu*  of  Uio  bUia  of  owUt,  dapmilnl  far  Uwlr  (Aouy  on  Uu  will  of  the  Siaioa,  and 
M  ila  tc"nar»l  iMputMwy  beottw  eaanlTeat,  Eiaaptaa  of  dayortare  from  tbo  proecribod 
rale  are  toi  well  kaown  lo  rsi|itira  ftotl.  The  caae  <<  the  old  bank  «f  North  Amerieo 
■uiubt  be  titcil  aa  a  MtmonHo  0M>    Tho  incoqioeiling  ordinwoco  grew  ost  of  the 


684 


CONSTITUTION  OP  THE   DNITEO  STATES.  [BOOK  DI. 


stitution,  and   tuccrtaJDcd  that  the  power  of  taxation,  thoogb 
general  as  to  the  Biibjccts  to  which  it  may  be  A[^lied,   is  ;ct 


fnlnnd  iinMBltj  of  locb  ut  [aMttatEon^^rrr  on  iha  wtr,  tpjr  aiding  Itia  Aatoam, 
wbich  wttn  ■tarring  andet  the  ncglcd^^kbilitf  uf  llis  SUM  U>  ftuolah  Uivlr  *•• 
MMed  <taoU«.  Congmt  wm  at  the  ^^^Hmach  axmre  ul  lliv  ihSdant  autbuilf, 
lluit  they  rxominendtd  ft  to  tbo  SuU  l^^RirM  to  pui  lava  giring  Joe  «llKt  t«  tha 
ordiD*nr»,  irhfch  «W  done  V  rrmnnytvanui  and  icvml  other  Statoa. 

"Ur.  WUmd,  jiutly  dbliiij:ui»b«>l  for  his  lai«UwtiMl  pomn,  being  ilMpl;  ln> 
preawd  uritb  tha  importati«e  of  ■  luik  at  »uch  a  crida,  poblbhixl  a  mnall  |uinphkl, 
tnlilled  'ConiidiTnttlon)  on  tha  Ituk  of  Korth  Antrioa,'  In  nikli  hx  Kidcivotnl  to 
derive  Ih«  |N)w>irrmii  ih^  natura  of  the  Vuiou,  fu  which  ibcooloDitt  wm  dadandanA 
bMami>  iiidiifciiilvnt  Stales  ;  and  alw  tnm  the  tenor  or  tke  '  ArtidM  of  Ooefrdarattoa '  j 
themwInB.     Bat  what  U  particularly  trarthjr  of  notioe  h,  that  with  all  LLt  afellafli:'] 
■canh  In  Xhenn  artlrloa  far  mich  a  poinr,  be  nrrtr  |[)ano*d  at  the  tonu  *  cainmca  ' 
Itmea  and  pooiaJ  nlbe'  aa  a  aourm  of  it.     K«  nther  <ho«t  to  rail  tha  claho  em  aj 
Kdtal  ia  the  tut,  'that,  (or  the  man  fonrenirat  man^nntcit ef  t^ifHicrsI  Entanal^ 
oT  the  United  Slatoa,  d<lcgat»  ihall  be  nonaaUy  apjMtntod  to  meet  in  Congn**,'  '  . 
he  aaid  impUtd  that  the  Unitnl  StMet  had  jpiwtal  t^hb^  iJtaml  powen,  and  gcntfall 
Ahligatlont,  not  dtrirad  ^in  any  particular  Slate,  ncf  tnm  all  th«  pani«Dtar  Slale^  i^ 
takm  aqiaiatnly,  but  'mailing  Trom  the  anion  of  the  whok;*  llMaa  gantra)  pcnrtrt 
not  b»!ug  oontraUtil  ,by  tbc  Dtticia  docUring  that  faeh  Slate  rrtalMil  all  powen  B«t 
granttil  by  the  artictei,  bc«auia  *iho  IniliHdual  Statca  naror  f  aMBMti  and  eonld  koi 
retain  a  grntni!  power  ovw  thu  oth«f*.' 

"Thcauihodly  andargttiuenl  hew  ^™o^t^^d  to.  if  pnvbgtbe  ingennity  and  f«tH-. 
otio  aaxitftj  of  the  author  on  one  hand,  aliow  iiiSRi«ntlr,  on  tha  other,  that  tha  t>nna  j 
'uommon  defence  and  getMtnl  BeUiua'coald  DAl,  uoordlng  t«  tha  kMnni 
of  tlicm,  anU  hi*  ohjscL 

"That  the  t«inti»  in  question  vrn  not  snipNted  la  the  conrention  aliioh  Cbnnali 
thi^  C'liKiIitution  of  any  lui^h  mcMimng  aa  bu  been  ooealnKtirtly  applied  to  them.! 
may  t«  pronouncci]  niih  cntlm  confldoncc    Far  It  ciceHlii  the  poadhility  of  briM^  j 
thnt  the  knann  odmcatnt  (n  th«  con>vattnn  for  a  Jealnna  grant  and  eanitloiut  dallni* 
tloo  of  radaral  jmwrtu,  «liuiilil  hate  aiktitly  pfrTnillmi  tlie  lntro<Jiii;lioa  «l  wnnli  or 
phraM  In  a  a«na«  renderiiig  Crnttlea*  the  netiiatiaaa  and  defiaitimia  ekbonttd 
by  them. 

"Oantldtf.  for  a  nonwnt,  tha  IrniDHanrahta  dUToNBca  brtvatB  the  CenaUtntin 
Hmitcd  in  ita  paven  to  th*  MmnaNstad  objMla,  and  azpandad  a*  U  wemU  be  by  tbal 
trnfutl  clalmrd  far  th)>  phiaaeotogy  ia  qnoBtion.    The  dimvatK*  it  M)alnikat  to  t««. 
mtittitatlotiii,  uf  oharatrten  nneatiaUy  oontraMed  with  *Mih  oUwt ;  tin  oe*  pitaaiaing 
pQwerfi  cunEnoI  to  wrtajn  apedfied  Maci,  tba  other  extftkdsd  to  all  caaw  vbabnarar.  ' 
For  what  i*  the  eoia  that  wonld  not  bo  embnuxd  \iy  a  gmmil  pover  to  falaa  maaej, ' 
a  power  to  preside  far  the  gmml  wlfirt^  uid  a  |<nw*r  to  paaa  all  law*  nacaaoMr  b»4' 
I«opar  1«  cany  Ihca*  powtistntAexacutioa  :  all  such  prorii^nk  and  lava  wivrw^lliifi, 
at  tha  aaaaa  llin<v  all  )o«al  Uwa  and  oonatitntiona  at  Tariaate  with  thein  I    r 
•aid  wHh  tha  Mdanor  boron  ni^  fbmiabtd  hy  tba  Joarnal  of  the  CoaTen'.. 
tban  that  it  ia  iininxafble  that  mtb  a  eonoiiaUon  aa  the  lattn  wnulil  hara  brm 
raaMnmondtd  to  the  Siotca  by  aU  tha  menbcn  of  ibat  body,  whoat  namaa  ware  an^ 
acrlbtil  In  Ihc  InatTnment  t 

"  PamlDji  fmoa  thla  rlew  af  thi>  wbm  in  which  th*  Unna  'cMBDion  dnltmta  and 
gtMral  wtlfarn'  «*r«  u«*d  by  tb*  (tenns  of  Uie  Ooautitntion.  M  «•  look  lur  that  in 


a«^0 


powens  OF  coKGBEss — TAzaa. 


686 


rcstrictire,  as  to  the  purpoiw*  for  which  it  may  be  exercised;  it 
uwt  bocgmiM  matter  of  jmiuiry,  what  wcro  the  niaBona  for  which 


wtiieh  they  mud  luv*  b*Mi  uadentooi  bjr  Ui«  ctmnittiona,  or  imUur  ly  Ih*  paeplc^ 
who  thnmitK  tlirir  (vuTiutious.  ii(vv|>tp|^Lmificd  It.  And  h*ra  tliB  ntldfnn  li.  it 
po**tM«,  Mill  man  iirnutiblf.  that  Hm^^^^ald  uot  t«T«  twoa  ngudcd  m  girlng 
a  »mp»  to  fcdMtil  logiilaUQO,  i  n  H  n  ii^i  y^^^pitjjtrtiftntbiii  tlun  any  tf  th«  ({MdAad 
jiotten,  wUcb  pmdnc*d  snub  altvuuws  ofipiwtigo  aad  iklU  lor  tMHidoMaU,  wlifali 
might  bo  MfcgUMdi  igtlutit  the  iliin|{cn  ■pprchtiidal  (torn  then. 

"  Tith<«t  mmring  to  the  puhluUiod  dcbstm  of  lliea»  oonrtntioni^  whidi,  m  br  m 
tiwy  caa  b«  (dial  oa  for  Mcnncy,  woulO,  It  b  belieTed.  Mt  Ik^wi  th«  orldtaco  to- 
auhod  bj  Arh  ttconbtl  poc«»diiig>,  U  will  mSoi  Is  arntalt  tho  Ibta  of  aiatnilmuiU 
prapood  bj  (uch  of  tUo  wnutitau  m  coiwliknd  Um  |Knien  giautad  l«  (ho  gortni. 
mnit  too  sxtfliNvo  or  not  lafely  d«linn]. 

■  ■  BoddM  tha  rMthetIm  and  «ipUui>t«r7  unaidDMntB  to  Uu  t<ist  of  the  Conatitu^ 
Uon,  It  may  b*  «batrnd  that  a  Long  Ibt  una  pranbod  ondcr  ll»  naino  and  in  tfca 
tufuti  of  '  UoeUiatMO  of  K^ihti ;'  all  of  tham  Indicating  ajcalouiy  ot  th*  FMbnl 
fDvm,  and  an  anxlcly  to  nuttiply  *KiititiM  a)Ciintt  a  cotmtroctiv*  «nliit;piu«ut  of 
Oitm.  Bot  the  af^wal  it  men  particulaily  mad*  to  the  nauibn  and  aalnra  cl  the 
*m«udnunta  propoied  to  be  made  ipcoiSo  Hid  inlpgnl  parta  of  tlio  oanMitiitieaal 
text 

"  V«  Ua*  iImi  M*oa  Statw^  It  ^ff*n,  oomoimd  in  adding  to  ibdt  latlfltatlm 
a  aarier  «f  anwndmaiila  whkti  lh«y  denned  TaqaWl*.  OT  tlinia  afuandnnil*,  nina 
wen-  )it«>pC9(d  by  the  oonrtntiou  of  Maaachuartta,  trt  t^  that  <4  Sootb  CaToliva, 
twelve  br  that  of  Ntw  IlampaUre,  twaty  by  that  «f  Virginia,  tbir^-thiM  by  that  af 
New  Vsrk,  l<rsuly-«is  hy  tbat  «f  Korth  CMoliaa,  aad  twaniy-osa  by  that  «S  Rhoda 
itUud. 

"  Hers  atv  a  majority  of  the  State*  proponng  anMndmenta,  In  ono  fawttnot  thirty- 
thra*  by  a  alogla  8t*t« ;  all  of  tbtK  latntdod  to  cinsmacribr  tb*  powM  gianlad  to  tha 
gituntl  gavtimaiaU  by  «iplu]aUaiu^  natrktion«>  or  prohlblti«<i%  without  Irf Ruling 
■  (iD^  pnfMttioa  lioni  a  *ii^  State  rvrcrring  to  tbe  tenna  '  toounoa  dtfcnc*  and 
gmrral  velAoc;; '  whidt.  If  nndotatood  to  oiDvey  the  awcrted  ^lOWtEr,  ooold  not  Imto 
fallad  to  bo  tha  fvmw  awat  atManonsly  aimed  al,  boMoaa  <*idaitly  mon  alarming  in 
its  ra^ta  thaa  all  tha  fomn  ot^t*d  to  pnt  ICRrtlMr.  And  that  tha  lama  ihonld 
bar*  paaaed  all«gt4bw  anDOliOMl  by  the  mwiy  ey«a  whlci  aaw  dan|^  In  tmns  and 
phixM  tntfloyri  in  aaoM  «f  the  dmbI  mutate  and  Umitnl  of  tlie  anaiuvtaled  |ww(t^ 
muit  be  Ngnid«d  a*  a  dcanonatntion  that  It  wm  token  for  granlnl  that  the  tcnna  were 
kannlaa^  bacaoae  ciplatnod  and  Iwltrd  m  in  the  'Aitidia  of  Confcdcfatio^'  hy  th« 
tDiHMniad  powan  whkh  folhnrad  thna. 

"  A  Ulu  dtmonatiaUon,  that  iboaa  tmaa  wm  aot  aadfttood  In  any  tnm  UmI 
could  isTeat  Co^naa  with  (■)«««  not  otherwita  ba«lo«ad  hj  the  oonslitathnMl 
chaitar.  May  bt  found  in  whil  |waed  In  the  faat  Mwion  of  OoQgrcM^  what  the  tnlgwt 
of  aniendmant*  waa  talun  op,  with  the  concQiatofy  Tiew  of  ftwalng  the  Coaatltatloa 
from  «t!jaclkin*  wliKfa  had  bocn  made  to  lb*  extoit  ot  ita  povan,  or  to  tha  angaardfd 
tamt  CMplovwl  in  daaniblng  iImu.  Kot  coilj  war*  tlia  tarna  '  eoinnMB  dafoioa  and 
gestnl  inSlm  '  maoliced  in  the  long  tUt  uf  ameodmenta  btoa^hl  (nwanl  in  tbt  ont- 
mt,  b«t  tha  Jqunala  of  CoagrMe  ahow,  that  in  the  progreea  of  the  ditounooni^  nut  a 
•io^  propndtlon  waa  nnda  io  either  btaneh  «f  the  lagidattm  whldi  rtfaml  to  the 
(liraM>  ai  admitting  a  eonalnctin  ankiKMaMit  of  the  gtanlad  poweta,  and  raiDliing 
an  aaicndnMnl  goardii^  egalmt  It.    8«ch  a  forbaaranto  aad  alkaco  oa  ancb  an  ooea- 


Oow 


COSOTITUTION  or  THE  D 


[book  ttl. 


1  arbi- 


tliis  power  v/aa  ^vcn,  and  what  v«ru  Cb«  objoctioiu  to  whidi  it 
va»  deemed  liublo. 

§  &A2.  That  tliv  power  of  taxation  slioiiUl  bo,  to  some  extent, 
Tested  ID  the  nutionul  govemi^^  was  admitted  bj  all  persons 
who  ainccrvly  di-sircd  to  ntct^^Km  the  imbccllitiefl  u  well  a» 
the  inequalities  of  the  cotife^^non.'  Without  suvh  a  |N)wt-r, 
it  would  nut  be  iwaxiblc  to  provide  fur  the  8Ui)port  of  the  imtiuuml 
forces  hy  laud  or  tica,  or  the  national  civil  list^  or  the  on)inar)r 
char^-8  and  cx[K^'ti8es  of  gorcninient.  For  thrse  piirpoeoa,  at 
leant,  there  must  be  a  constant  and  regular  HU])ply  of  rorcnue.* 
If  tiirre  should  bo  a  deficii'nilT,  one  of  the  two  evils  must  iitovita* 
biy  ensue;  either  the  people  mtiat  be  subjected  to  continual  arbi- 
trarv  ]>iunder,  or  the  government  must  sink  into  a  fatal  atrophf. 
The  former  is  the  fate  of  Turkey  under  ita  soxereigns:  the 
was  the  fate  of  America  under  the  confederation.' 

§  9it3.  If,  then,  tliere  is  to  be  a  real,  effective,  national  gov- 
ernment, there  must  be  a  power  of  taxation  coextensive  with  it« 
powers,  wants,  and  duties.  The  only  inquiry  properly  remain- 
ing is,  whether  the  resources  of  taxation  should  bo  specified  and 
limited;  or  whether  the  power  in  this  respect  should  be  general, 

don,  And  vnonji  m  mtny  in«inbnra,  who  b«laOjit«d  t«  th*  part  ot  the  MtMn  tihiA 
ailed  for  ext'luiitcrry  suil  rvHlrivliTv  arnendrntnla,  kdiI  who  luul  I>mh  ctrctml  m  kaowO 
tuJTonlai  far  llieiii,  ouinot  b«  scoouutcd  fot  witbont  tuppoung  that  Uh  tMnw  'o«m- 
non  •JFTcncfl  and  gcufnil  wellars  '  vore  not,  at  tlutt  lims^  daemod  luacaptlble  of  anj 
tacli  coRilrui^tlon  iw  hiu  ■iiicd  ticca  applied  to  thom. 

"  It  RMy  In  Ihoushi,  potliap^  dot  to  tli*  anbj«at  to  advert  to  a  letter  of  OoMb 
5,  1787,  to  8«iiiuv]  Ailain*,  anil  anothar  of  October  Ittb,  of  Ihc  lataa  jrmr,  to 
governor  of  Virginin,  IroiD  K.  B.  Lee,  in  both  or  wtiieh  It  ii  wen,  that  the  tcma  biA 
attmctcd  hji  notice,  imd  wore  apprebendod  by  biin  *to  mibinlt  to  OongiaM  amy 
object  of  liumiui  losUlatloii.'  But  it  U  panicnUrl]r  irorthj^  of  rnnark,  that  altlMngb 
a  miintwr  of  th«  Svtuto  of  the  United  StatM^  when  amnudjiiMita  to  tka  COMliliittoM 
wtn  Uvtort  that  Iioum,  and  auodiy  addiliona  and  alletatiou  «er«  ttiete  nadt  t«  Uia 
ll«t  wDt  from  the  other,  do  notice  was  taken  cf  thoa*  t«nna,  m  pngnant  wilb  dan^. 
It  must  he  inferred,  that  the  opinion  formed  bj  the  diatingnlahed  namtMt.  at  tiie 
flnrt  rIoiF  of  the  Conititatlon,  and  befora  ft  had  bam  fuDy  dbmaaed  and  chuid 
had  been  cliaugod  Into  a  conTtetlon  that  tli«  tamw  did  not  lut\f  adnit  the 
tioQ  h«  had  originally  put  oo  them  ;  and  thprcfore  ne«ded  no  eiplaiMloty  preoaoHa 
again *t  It." 

AKsiDst  the  opinion  of  Ur.  Madiaon  thcrn  aro  the  opinion*  of  dmb  of  gnat  MaWj 
nvnor,  and  vrnti  enlitle<l  to  the  «onfid«nM  of  ihrii  countiy ;  and  ataong  thew  Ma;  fasi 
tnuDirratcd  Pnaidenta  WaahlagtOQ,  JaOknoo,  and  UoDio«k  ud  Air.  HaaOtM.    The 
opinion  of  ih«  lactar  npon  tbl*  vary  point  will  \»  giraa  bmaltat  ia  hie  om  vonki 

'  8(iB  The  F«l«ali«.  No*.  21.  80. 

'  1  Turk.  Black.  Coara.  App.  SSS  rt  atg. ;  Id.  SM,  345. 

•  The  FvdetaUtt,  No.  ao.  •  IbU. 


I 


CB.  IIT.] 


POTERB  OP  C0SGBES9  —  TAXES. 


m 


^ 


I 


^ 


leaving  R  full  clioiec  to  the  nationni  loj^slaturc  The  opponimte 
of  th«  Co»8tittitiofl  Blrenuoiisly  coiilemlcd  Ibut  th«  power  should 
1>6  rcAtrictod ;  its  friendn  as  stretiuoiisl;  contended  that  it  wan 
indispenMble  for  tlio  piililic  safctyj  that  it  eJioiild  be  general 

§  d84.  The  general  rt-aaoning,  'by  which  an  unlimited  power 
waa  RiMtained,  was  to  the  following  effect.  Every  government 
ouirht  to  contain  within  itself  every  power  re<]ui8ite  to  the  fn!l 
ac'CDtnpl  ialiment  of  the  objecta  committed  to  its  care,  and  the 
complete  execution  of  tlic  trusts  for  which  it  is  reflponsiblc,  free 
from  every  other  control  but  a  regard  to  the  public  tT^od  and  to 
the  security  of  the  pefjple.  In  other  words,  every  power  otigfat 
to  he  proportionato  to  its  object.  Tho  duties  of  superintending 
the  nntionn)  defence,  and  of  securing  the  public  pcaco  a^inst 
foreign  or  domestic  violence,  involve  a  provision  for  casnaltics 
and  dangers  to  which  no  possible  limits  can  bo  assigned;  and 
therefore  the  power  of  making  that  provision  onglit  to  know  no 
other  hounds  than  the  exigencies  of  tho  nation  and  tlie  resources 
of  tho  community.  Revenue  is  the  essential  engine  by  which 
the  means  of  answering  the  national  exigencies  rauat  be  pro* 
cnred;  and  therefore  the  power  of  procuring  it  muat  neeesaarily 
be  comprehended  in  that  of  providing  for  those  exigencies. 
Theory  aa  well  aa  practice,  the  past  experience  of  other  nations 
as  well  as  our  own  aad  experience  under  the  confederation,  con- 
spire to  prove,  that  the  power  of  procuring  revenue  ia  unavailing 
and  a  mere  mockery,  when  exercised  over  States  in  their  collec- 
tive capaoities.  If,  therefore,  tho  federal  government  was  to  be 
of  any  efficiency,  and  a  l>ond  of  union,  it  ought  to  be  invested 
vith  an  unqualified  power  of  taxation  for  all  national  purposes.' 
In  the  history  of  mankind  it  has  ordinarily  been  found,  that  in 
the  usual  progress  of  tbinga  the  necessities  of  a  nation  in  every 
state  of  its  existence  arc,  at  Icoat,  equal  to  Its  resources.*  But, 
If  a  more  fiivunible  state  of  things  sliould  exist  in  our  own  gov. 
eniment,  still  we  must  cxjK-ct  reverses,  and  ought  to  jirovido 
against  them.  It  is  impossible  to  foresee  all  the  various  changes 
In  the  iwwture,  relations,  and  power  of  different  nation.^  which 
might  affect  tJie  prosperity  and  safety  of  our  own.  We  may 
have  formidable  foreign  enemies.  We  may  hare  internal  ccwn- 
mutiona.     We  may  suffer  from  physical  as  well  as  moral  catami- 

1  Tlie  Ft^mlU.  No.  31 1  M.  Ko.  W  j  Id.  Me.  SI. 
•  Th«  PoknliM,  Ko.  M. 


668 


CONKTITUTIOK  OP  THE  UHITEO  STATKS.  [BOOK  in. 


tics;  from  plagues,  famine,  and  earthquakes;  frcnn  political 
coi»'ulHioiis  and  rivalrios;  £rom  the  gradual  decline  uf  [Mrticutar 
»ourc«B  of  industry ;  and  from  th«  necessity  of  ctiuntnnt;  our  own. 
habifa  and  pursuits,  in  conacquciK:*.-  of  fon-ign  iuiprovutiients  and  ' 
competitions,  and  the  rarlablo  nature  of  humuu  wants  and  de- 
sires. A  Hour**  of  n-veuue  adequate  in  oa«  age  may  wholly  or 
partially  fail  in  aiiotlier.  Coumieroc  or  manufaotures  or  agri- 
culture may  thrive  under  a  tax  in  one  age,  which  would  destroy 
them  in  another.  Tlic  power  of  taxation,  therefore,  to  be  use- 
ful, must  not  only  be  adequate  to  all  the  exigencies  of  (be  imtion, 
bat  it  must  be  ca]>abl«  of  reaching  from  time  to  time  all  tlie  meet 
productive  sotiroes.  It  has  boen  otwerved  with  no  less  truth  thaa^ 
point,  that*' in  political  arithmetic  two  and  two  do  not  always' 
make  four." '  Coostitntions  of  government  are  not  to  be  framed 
upon  a  calculation  of  existing  cxigencieti;  but  u|Mm  a  combina* 
tion  of  those  with  the  probable  exigencies  of  ages,  according  to 
the  natural  and  tried  course  of  human  affairs.  There  ought  to 
be  a  capacity  to  provide  for  future  contingencies,  as  they  may 
happen;  and  as  these  are,  as  has  Iioen  already  suggested,  illim* 
itable  in  their  nature,  so  it  is  impossible  safely  to  limit  that 
capacity." 

§  9&0.  In  answer  to  this  rcasoQing  It  was  objected,  that  "it 
is  not  trne,  because  the  exigencies  of  the  Union  may  not  bo  sus- 
ceptible of  limitation,  that  its  power  of  taxiilion  ought  to  bo  un- 
coufined.  Bevenue  is  as  requisite  to  the  pur|KiHi_-s  n(  tlie  local 
administrations  as  to  those  of  the  Union ;  and  the  former  an)  at 
least  of  equal  importance  with  the  latt«r  to  the  hnp]>ine8s  of  the 
people.  It  is,  therefore,  as  necessary  that  the  State  goveninents 
should  be  able  to  cominiuid  the  means  of  supplying  their  want^ 
as  that  the  national  go^'crnment  should  possess  the  like  faculty 
in  rcHpect  to  the  wants  of  the  Union.  Rut  an  indefinite  power 
in  the  latter  might,  and  probably  would  in  time,  deprive  Uie 
former  of  the  means  of  providing  for  their  own  necessities;  and 
would  subject  fliem  entirely  to  the  mercy  of  the  national  legis- 
lature.    As  the  lavs  of  the  Union  are  to  become  the  suprcmo 


>  Tbt  FadtnUtt.  M«.  tl. 

•  Tbt  Fefanii*!,  No.  U  :  1  EUiof «  Dttaln,  77  to 99  ;  liLSM  toSOS;  Id.3O0.lll 
to  S1«.  82t  to  SM ;  Id.  337:  1  Elliot'* I>«b«M,  DS.  M,  llS  :  td.  ItSlo^M  ;  S  RlHal'i| 
D«lmtM.  lai,  tei.  aso ;  9  Awn.  Humoid,  SSI.  ISS  [  1  Tiutktr'i  Klw^k.  i:<mai.     ~ 
330.  33S. 


CR.  xir.] 


POWraS  OF  COKGBBBS  —  TAXIB. 


C89 


vr  of  the  land,  and  as  it  is  to  hare  power  to  pass  all  laws  that 
■7  be  oeoossarj  for  carrj'iog  into  executioD  the  auUiorities 
with  whi«h  it  is  proposed  to  vest  the  national  government,  it 
might  at  any  time  abolish  the  taxea  imposed  for  State  objects, 
U{(on  the  pretence  of  an  interference  with  its  own.  It  miglit 
allege  a  necesntty  of  doing  this  in  order  to  give  eRicacy  to  the 
national  revenue;  and  tJitts  all  the  resoarces  of  taxation  might 
by  degreea  become  the  subjecta  of  fedora)  monopoly  to  tlie  entire 
exclusion  and  destruction  of  the  State  gorcmmenta. " '  The 
diflicultiee  ariaiug  from  tliis  collision  between  the  State  and  na- 
tional govemntente  ini^it  be  easily  avoided  by  a  8ei>aration  and 
distinction  as  to  the  subjects  of  taxation,  or  by  other  methods 
whii'h  mipht  be  easily  devised.  Thus,  fur  instance,  the  gvncrsi 
govemnicnt  mij^it  be  intrusted  with  the  jiower  of  external  taxa- 
tion, such  as  laying  duties  und  imposts  on  goods  imported,  and 
the  States  remain  exclusiivly  in  ])08SCSsion  of  the  power  of  inlor- 
Dul  taxation.  Ur  jwwer  might  l«  gircn  to  the  general  govern- 
ments to  lay  taxes  exclusively  upon  certain  specified  subjects ;  or 
to  lay  taxes  if  retjuisitiona  on  the  States  were  n<it  complied 
with  ;*  or,  if  the  specified  subjects  failed  to  produce  an  adequate 
revenue,  resort  might  l>o  had  to  requisitions  or  even  to  direct 
taxes  to  supply  the  deficiency.' 

§  9S6.  In  regard  to  tliese  objections  it  was  nrged  that  it  was 
iu)|wssible  to  roly  (as  the  history  of  the  government  under  the 
confederation  abundantly  proved)  upon  requisitions  upon  the 
States.*    Direct  taxes  were  exceedingly  unequal  and  difTicult  to 


■  The  Framlut.  Ko.  31  ;  I  EUiot't  Datetaa,  77,  73  to  f«  -.  M.  »1,  105,  113 ;  Id. 
n,»tua»ei  Id.  301.  3M,  SOS :  id.  33*  to  338  i  3  miiul*  Urbtki^  61,  ».  308  ; 
I  EUM'i  DvImIm,  77  ta  »1 ;  1  Tw*.  Bbck.  Cnmm.  Apt^  310  ;  S  Amor.  Umctnu,  SIS, 

6(1. 

t  3  Am«r.  MaiMm.  113  ;  3  RlUol'a  DgbitM,  Gl,  U,  SOO,  9M. 

■  See  Th«  FnleraliM.  No.  SO ;  1  EUiM'a  D«IiUm,  SM  ;  I  Tncktr'a  Bkck.  Conn. 
Ap^  334.  SU  ;  1  Qliol'i  Dulaln,  >M,  3W  i  S  KlIlM's  Mttm,  S3,  SZ.  11 1.  US ;  Id. 

,  SOS,  SOS-  It  »••  noTed  in  tbt  ocnTv^tiim.  tfaat  wtMncrer  nvtnM  vu  i«^ttit«d 
•  b*  niwd  by  Ainct  unUoa,  it  ihMld  U  ^iportkoud  ratoiig  Iks  8t>l««^  aad  tbcn 
nUtkntiMileapan  ttM8latMMptrtb«a»Miat;  and  In  diAn^lontycf  th«ii«>m- 
,  Oooffrew  nlwSld  Iw  ratltotiMd  to  pM*  mU  dlnctinf  (lie  nodo  of  nllerting  it. 
But  lUi  prapealtioon  <ru  Tq««ted  bjr  ■  rotegfwru  SMm  iqriiMt  «aiv  on^  St*'"  txiXR 
divi-M.    Jonral  «f  ibr  OonvMitbii.  p.  tti. 

*  TIm  rnltnliu.  Ne.  80  ;  1  EUiot'i  DcbUe*,  803,  S04 ;  Id.  3»,  3SS,  337 ;  8  EUiM'f 
Dthttm,  108.  ISV,  lOL 
▼OL.  I.  —  44 


690 


cossnun-ios  op  the  uxitu>  states.        [book  m. 


adjuiit,'  and  could  not  safely  be  relied  on  aa  an  ador|nftte  or  m 
isfsctory  Boarcc  of  revenue,  except  as  a  final  resort  whi^n  others 
more  cliKibio  failud.  The  distinction  between  external  and  in- 
ternal taxation  was  indeed  cs|)able  of  beinf;  reduced  to  pr%otioeL 
But  in  many  emcr^ncics  it  might  loAvo  th«  national  government 
vithuiit  any  adequate  ruiourcc«.  and  compel  it  to  a  course  of  tax- 
ation ruinoua  to  our  trade  and  iiiduiilry  and  the  solid  intercttta  of 
the  country.  No  one  of  du«  retiectiun  can  contend  that  eommer- 
cial  impDrts  arc  or  could  l>c  oiiunl  to  «11  future  exigencit-s  of  the 
Union;  and,  indeed,  ordinarily  tliey  may  uot  be  foinid  eqiuil  to 
thorn.*  Sappose  they  arc  equal  to  tlic  ordinary  cxpcn»e«  uf  thi> 
Union;  yet,  if  war  should  come,  the  civil  list  must  lie  onltrcly 
overlooked,  or  the  military  left  without  any  adequate  supply.' 
Bow  is  It  possible  that  a  government  half  supplied  and  half  tie- 
cessitons  can  fullil  the  [iiirpo«cs  of  its  institution,  or  can  provide 
for  the  security,  advance  the  pro8|»crity,  or  support  the  reput*- 
tion  of  the  commonwealth?  How  can  it  ever  possess  cither 
energy  or  stability,  dignity  or  credit,  confidciirc  at  home  or  re- 
spectability abroad?  Hnw  can  its  administration  bo  anything 
else  than  a  ttuceoHsion  of  expedients,  temporary,  impotcui,  and 
dingraccfnl  ?  Ilnw  will  it  bo  able  to  avoid  a  frequent  sacrifice  nf 
its  engagements  to  immediate  npcessity?  How  can  it  undertake 
or  execute  any  liberal  or  enlarged  plans  of  public  good  ?*  Who 
would  lend  to  a  government  incapable  of  pledginjif  any  (lermaucnt 
resources  to  nnleem  it«  debta  ?    It  would  l)e  tJie  conin  -'  of 

needy  individuals  who  roust  lx>rrow  upon  oneroiii;  c^'H  md 

usury,  because  tlicy  cannot  promiae  a  punctilious  discharge  of 
their  cniragements.'  It  would,  therefore,  not  only  not  Ite  wi!U>, 
but  be  the  exti-cmc  of  folly,  to  stop  short  of  adequate  resourccA 
for  all  cmergencieii,  and  to  leave  iJie  government  intrusted  with 
the  care  of  the  national  defence  in  a  state  of  total  or  [iortiul  in- 
capacity to  provide  for  the  protection  of  the  coromunily  against 
future  invasions  of  the  public  peace  by  foreign  war  or  domestic 

)  Tb*  FnUnljtt,  No.  SI ;  1  EUiot*i  DefaMw,  SI.  B3  :  t  EDwf*  Ihtuin.  103 1  Id. 
im  DM,  130 ;  1  ToAn-a  m»ck.  Conua.  ip^  134,  SSi,  11«  i  S  Dkll.  R.  171.  ITS. 

■  The  FtitcnUn,  Koi  II.    8m  I  Ellioc'i  IVbOon,  303  to  8MI. 

■  TfaftPedmlul.  No*.  30^34.  "  A  gortmmcnV'oiiiloMof  ourinort  ilMinitQialMd 
«UUUM«,  Ht.  EtUworih,  ot  CuBnActkaC,  ^cakisg  oa  thu  vrrj  nilgnt,  "  trhkh  aaa 
comninid  bot  half  lt»  mouKM.  in  lik«  m  mu  *ilh  but  om  am  (o  dffrail  kltnatU," 
8|i»«li  in  Oanotctiant  Coavrailioii,  Ttb  JtBotrj,  17U ;  S  AMtt>  Hskbid,  33S. 

•  the  Fedemlkt  No.  30.  *  IU4. 


CH.  nv.] 


P0WKI8  or 


I — TAXE8. 


691 


lOonviilsioiu.  If,  iudvcil,  w«  am  to  trj  the  novel,  Dot  to  say 
,  abfiurd  experiment  m  pulUios,  of  tying  up  the  liuniU  uf  gov«m- 
meot  from  prvtccctve  mid  offcnitiw  war  fotindcd  upon  rea80D«  of 
statey  we  ouglit  certitioly  to  he  ublc  t«  compel  fureiga  iiutions  to 
IjtbataiD  from  all  rncasure*  which  Bh»l]  iujure  or  cripple  na.' 
"Ke  must  Ite  nble  to  repress  their  aoibitiou  aiid  di»arm  their  eii- 
mity;  to  conquer  their  prejudice*  aod  destroy  their  rivalrieit  and 
jealousieo.  Who  is  no  visionary  as  to  dream  of  auch  a  moral 
infliKDce  in  a  republic  over  the  whole  world  ?  It  aliould  ne^-er 
he  forgotten  that  the  chief  flources  of  expense  in  every  porem- 
nient  have  ever  ariaon  fn>m  ware  and  relkellions,  from  foreign  am- 
bitioD  and  enmity,  or  fnnn  domestic  insurrections  and  factlona. 
Aiid  it  jnay  well  Iw  presumed  that  what  has  been  in  tlie  past  will 
continue  to  bo  in  the  future. 

§  937.  Besides,  it  is  numifeat,  that,  however  adequate  com- 
mercial iiiifuwts  mi^it  be  fur  tlu-  ordinury  ex|ienditures  of  peace. 
Uic  u)x.-rutiuiis  oi  war  mi^it,  and  imlM-d  tirdiiuirily  wuuld,  if  our 
ttdvcrsary  poaseiwed  a  large  naval  force,  greatly  endanger,  if 
tfaoy  did  nut  wbully  cut  off,  our  supplier  from  Uiik  source'  And 
if  this  wore  Uie  »ok-  reliance  of  the  untiuunl  guvvrnmcnt,  a  naiiml 
warfare  upon  onr  commerce  would,  on  this  very  account,  be  at 
oiico  the  moat  (UicccsHful  and  tho  moat  irresistible  moans  uf  sub- 
duing: us,  or  compelling:  tis  to  sue.  for  peace.  What  could  Great 
Britain  or  France  do  in  a  naval  war,  if  they  were  compelled  to 
Tely  on  comntercc  alone  as  a  resonroe  for  taxation  to  raise  armies 
or  maintain  navies  ?  What  could  America  do,  in  a  contest  with 
a  nral  power  wh(««  navy  posseased  a  anperiority  sufficient  to 
blockade  alt  her  principal  porl«  ?•  And,  independent  of  any  such 
exigencies,  tlic  history  of  the  world  shows  that  nothing  is  more 
fluctuating  and  capricious  than  trade.     The  proudest  commercial 

1  Til*  7Ml>-r*lbit,  No.  Si.  *  3  Elliot'*  Dtlwta.  IM. 

>  la  tli«  mMiil  wir  «l  nu,  1813,  MirMa  Otntt  BffUlii  tmi  Uw  L'biUJ  Statr«,  vo 
hti  abiuiilaM  iiroari  ot  the  oonwIiuM  of  tha  nnoning.  lionrllfaalaMiling  th*  ilnltM 
apo«i  ImfottatMiiii  <nrra  Jouiltd,  from  iJm  nani  Ri]>«rMrit7  «f  oar  oiemjr  oar  go*eni- 
nwnl  wen  oompdled  (o  rcwrt  lo  Aitrct  «id  totanifll  ux«i,  to  Und  Una,  anil  pxcina  i 
Mid,  crab  with  «tl  thrm  adTanUga,  it  \m  BolnrtoiM,  Ihit  the  mdit  of  the  fjorrnmioit 
•dnk  •xtmiini^j  low  dttriag  iIm  oontMt ;  tail  thp  (lablic  McnrtUnt  wn*  iKmRbt  and 
•oUi  ante  Uta  ray  «r«  «f  tlw  admfnMtntMn,  at  >  ditmoDl  of  am\y  Hfly  |>*t  «Mit 
Inm  iMr  aatnliwl  MnannL  K«;,  at  ••>•  time  it  «n*  inpneticaUe  ta  bormw  ■■; 
'  iHMiey  npoa  lb*  ijowniimnt  cn^lt.  Thi*  arait,  Isi  ii  bo  iMfttabered,  toak  phot 
•ftcr  t<r*Dt;  ytu*  at  BMxutplnl  ptixpnity  of  Una  eouetir.  Ii  U  a  ad  but  wlcaun 
adawDttloa. 


692 


COWmUTtOH  OF  TRE   (TN1TBD  STATfS.  [BOOK  in. 


nations  in  one  age  bare  sunk  dovn  to  comparatire  insjgnificatice 
in  another.  Look  at  Venice,  and  Genoa,  and  the  Uanae  Towna, 
and  Hntland.  and  Portupil,  and  ?puin!  What  is  tlieip  present 
coniniei'cial  impoi-Uiuo^;,  compared  with  it*  glorr  and  suoccM  in 
pant  times  ?  Could  «ithcr  ol  them  now  eaftly  re\y  on  inipo«l«  as 
an  excluaivo  source  of  revenue  ? 

§  938.  There  is  another  vcrv  imi«rtant  view  ol  thi»  snlijceL 
If  the  power  of  taxatjoa  of  the  ^neral  govonuncnt  were  confined 
to  duties  on  imports,  it  is  evident  that  it  might  he  compe11i;d,  for 
want  of  other  adei|uutc  resources,  to  extend  tlic-8e  diilics  tn  au 
injurioits  oxecsa.  Trade  might  beeumc  embarraaited,  and  perhaps 
u|>pre)t8cd,  so  as  to  diminish  the  rccejpttt.  while  the  duty  was  in- 
creased; amu^'Iinfi,  always  facile,  and  always  demoralizing  in  a 
republic  of  a  widely  extended  sca-«oast,  would  bo  most  mis- 
chievously encouraged.'  The  first  cfTcct  would  be,  that  oouinierc« 
would  thus  gradually  change  its  channels;  and  if  other  inler«st« 
should  be  (as,  indeed,  they  might  be  to  some  extent)  aided  by 
Ruch  exorbitant  duties,  the  iiUimnte  result  would  be  a  great  i 
diminution  of  the  revenue-,  and  the  ruin  of  a  great  branch  of 
industiy.  It  can  never  be  either  politic  or  just,  wise  or  [latri- 
otic,  to  found  a  government  upon  principles,  which  id  its  onli- 
uary,  or  even  extrannlinnry,  operations  must  naturally,  if  not 
noeessarily,  lead  to  such  a  result,  lliis  would  bo  to  create  a 
government  not  for  the  happiness  or  prosperity  of  the  whole  peo* 
plo,  but  for  oppressions  and  inequalities  arising  from  scan^ 
means  and  inadequate  jwwers. 

§  939.  In  regard  to  the  other  part  of  the  objection,  founded 
on  the  dangers  to  the  State  povemmenta  from  this  general  iwwer 
of  taxation,  it  is  wholly  without  any  solid  foundation.  It  aa- 
sumea  that  the  national  government  will  have  an  interest  to  op- 
press or  destroy  the  State  governments;  a  supposition  wholly 
inadmissible  In  principle  and  unsupported  by  fact,  Thi-re  is 
quite  as  much  reason  to  presume  that  there  nnll  bo  a  dispositiuo 
in  the  State  governments  to  eneroach  on  that  of  the  Union.'  [n 
tnith,  no  reasoning,  founded  exclusively  on  either  gnmnd,  is 
safe  or  satisfactory,  Tliero  ought  to  be  power  in  each  goTom- 
ment  to  maintain  itself  and  execute  its  own  powore;  but  it  docs 
not  necessarily  follow  that  either  would  hooome  dannerons  to  Ute 
other.     The  objection,  indeed,  is  rather  aimed  at  the  structure 


CH.  riT.] 


POWESB  OP  CnmiRBSB  —  TAXES. 


698 


and  or^niiiittion  of  the  government  than  at  its  povcrs;  Bin««  it 
is  iiti|>i*i)Hibl«,  if  the  «triicture  and  organization  be  reasonably 
ekitfiil,  that  any  UHurpation  or  ofipression  can  tako  place.' 

§  !>40.  Kilt,  vaivitif;  this  t^onsideration,  it  will  at  onc«  )x>  )W'<'n 
tJiat  the  State  govemmeiitB  have  complete  meaiiit  of  scU-protce- 
tion ;  aa,  vitb  the  sole  exception  of  duties  on  imports  and  exports 
(which  the  ConstituUun  has  taken  from  the  States,  unites  it  is 
cxereised  by  the  consent  of  Ooi^;re«s),  the  jxiver  of  taxation  re* 
mains  in  the  Statrs,  concurrent  and  coextensive  with  that  of 
CongrcAS.  The  sliuhtcst  attention  to  the  subject  will  demon- 
stnte  this  beyond  all  contivvcrsy.  The  lunguage  of  the  Consti- 
tution does  not,  in  terms,  make  itancxcluaivc  power  in  Congress; 
the  existence  of  a  ouncurrcnt  power  is  nut  incompatible  with  the 
exercise  of  it  by  CongrcKs;  and  the  i^tatea  arc  nut  expressly 
prohibited  from  using  it  by  the  Constitution.  Under  such  cir- 
cumstunccs  the  argument  is  irresistible,  that  a  concurrent  power 
remains  in  the  States,  as  a  port  of  tbcLr  original  and  uusurrcn- 
derud  BOvereignty.'{a) 

§  941.  Tite  remarks  of  QtQ  Federalist  on  this  point  ore  wry 
full  and  cogent  "There  is  plainly,"  says  tliat  work,  "no  ex- 
pression in  the  granting  clause  which  makes  that  power  exclus- 
ive in  the  Union.  I'here  is  no  independent  clause,  or  sentence, 
which  proliibits  the  States  from  exercising  i(.  8u  far  is  Uiis 
from  being  the  case,  that  a  plain  and  eonclusive  argmueut  to  the 
contrary  is  deducible  from  the  restraint  laid  upon  the  States  in 
relation  to  <]iilie»  on  im|Hjrt4  and  exports.  Thin  restriction  im- 
plies an  admission  Uiat,  if  it  were  not  inserted,  the  Slates  would 
posMSS  the  power  it  excludes;  and  it  implies  a  further  admis- 
sion, that,  as  lo  iill  other  taxes,  the  authority  of  the  Slates 
remains  uudiminishitl.  In  any  other  view  it  would  be  both  un- 
ncoeasary  and  dangerouB.  It  would  bo  nnncccssary  because,  if 
the  grant  to  the  Union  of  tlio  power  of  laying  such  duties  im- 

t  Tl>«  FtWnllit,  >'o«.  SI,  3S. 

<  Th«  fBknliit,  No.  Si.  Sm  Gibbon*  v.  Ogden.  ft  Wheat  B.  t,  IM  to  9CS.  I 
Knii't  Curara.  Ltrt  IS.  ppi  StS,  SCT,  tM,  M0.  Tliia  M^^e^  bu  ht«n  abotd;  oeaM* 
«mt  In  IlitiM  ConiMMitMiH,  JB  Um  tuIm  of  wtiqitvutiaa  of  the  CoMtilDdoo  :  and  a 
vrry  iBit*Mtuat  iUajtfmlioii  Id  Um  Fxlnmliil,  Ko.  S2,  on  ihU  vtty  polot «/ tucatlan,  wm 
ctlnl  tbrrv.  tt  M«^  tbrnfon,  wlialljr  iwtweMMMy  lo  rvpnt  th«  TMjnning.  Sm  «1m 
t  nntMton-i  K.  1M,  316 :  S  Wlualas't  K.  33,  St.  SS,  tS,  tft ;  B  WbMtun'*  B.  109.  Sid 
SSe  ;  13  Whcatgn**  R.  Ui. 

In]  DobUu  K  Eris  ]«  F»Hn^  U1. 


694 


IICKC  OK  TUK   UKITRO  aTATGS.  [BCM>R  Iir. 


plied  the  exclmion  of  iJte  StatoA,  or  even  tti«ir  tiithordtiutron  in 
this  particular,  there  woald  be  no  need  of  such  a  refltriclion,  It 
would  \te  dan^rotis,  because  tlie  introduction  of  it  leads  directly 
to  the  conclusion  which  bun  b«en  mentioned,  and  wliich,  if  tlio 
reamntog  of  tJie  objector*  h«  just,  could  not  have  bo«n  intended ; 
]  mean  that  the  Stutra,  in  ull  ca^-a  to  which  the  rvslriolion  did 
not  apply,  would  huro  a  concurrent  powvr  oi  taxation  witJi  llr« 
Union.  Tin;  restriction  in  i|uestion  ninOU)il«  to  wlmt  Uwveni 
call  a  neg«tivc  prejcnuiiti  that  is,  a  negation  of  one  thinir  nnd  an 
aflirmaitcc  of  another;  n  n*^tion  of  the  authority  of  the  Hlaies 
to  iuipii#«  taxes  on  imiwrts  and  exporta,  and  an  aflirmance  of 
their  authority  to  imiKwo  them  on  other  artiolce."  '*As  to  a 
supposition  of  i-epn^nney  between  the  (Hnrer  of  taxation  in  th« 
States  nnd  in  the  Union,  it  cannot  be  snpporti^d  in  that  tiense 
which  would  be  re(ini»ite  to  work  an  exclusion  of  the  Statea.  It 
in,  indeed,  possible  that  a  tax  mi|;ht  be  laid  on  a  pariicular  ar- 
tide  by  a  State,  which  might  render  it  inexpedient  that  a  fur- 
ther tax  »liould  be  laid  on  the  ftamc  article  by  the  UniotL  B«t 
it  would  not  imply  a  onnntitulional  innbility  to  iniposK!  ft  further 
tax.  The  quantity  of  the  itn|KK«itinn,  the  expediency  of  an  in- 
orcnae  on  either  side,  would  bo  mutually  quesliona  of  pnidence; 
but  there  would  be  inroh-ed  no  direct  eonlrudielion  uf  [lower. 
The  particular  fiolicy  of  the  national  and  .State  »ysteiu  of  finance 
mi)rhl,  now  and  then,  not  exactly  coincide,  and  mi^t  nt<]ulr« 
reciprocal  forliearance.  It  i«  not,  however,  a  mere  pofwibililr  of 
inconvenience  in  tJie  exercise  of  powers,  bnt  an  inimi-diato  eon- 
atitiiCional  rcpii^ancy,  that  can,  by  Implication,  alienate  Midi 
exlin^iiiih  a  pre-existinjt  right  of  Mverelttnty." '("J 

§  iH±  It  la  tnio  that  the  lawB  of  the  Union  are  to  bo  Biiprenw, 
But  withont  this  they  would  amount  to  nottiin^r.  n.  niar  Ur  ud- 
miltod  that  a  law  laying  a  tax  for  the  u|^  of  the  United  8(at<fl 
would  be  supreme  in  its  nature  nnd  leipitly  nneon'  "  '  li-.  Yft 
a  law  abroii^ting  a  State  tax  or  pi-cventing  it«  •  :>   would 

>  Tlw  r.4enIiA  K<ml  32,  S<.  &«•)»>  Anwrimn  MiM*iaB,  SS8,  341 1  1  EtHwt^ 
0«li.307,3>>i;  ld.!ilfi,  S16i  Id.331ti>asS:  ZKIiiut't  l)rl>.l|ISl(i»>ti  McCaUnokf^ 
fltur  »i  UnrjUnd,  t  W1>m|im'«  R  316.  4X$  to  4»  i  9  Wboit  R.  l»».  SOfl.  SOI :  tS 
Wbmtan'B  B.  i*6.  WbtUioi  a  Stata  cm  tax  u  iMdnnnfat  malail  by  tW  lutfuiia) 
goTcniMMit,  to  >c«owplBh  utiaiul  o^iect^  wlU  ba  bcMaTlBr  eosililnwt. 

(a)  A*  to  (flocurmit  |<ow»r  nt  laiation  in  tba  SIUm  «nil  tile  fcdcnl  gantaoM, 
tm  <:uiu<l  Sutta  v.  Boiwm,  3  CtiO.  S12. 


CH.  XIT.] 


P0WEB8  OF  COMGRSn  — tAZn. 


«» 


be  u  olcurlr  iinconstitiitional,  and  therefore  not  t]ie  Bupreme  taw. 
As  fur  as  aii  iiiiprojMsr  ovcuiuulutioa  of  Uixott  uo  the  tutrac  thing 
miglit  tow)  to  reader  the  collcelloo  dlAiGulC  or  pracariouH,  it 
would  be  a  mutual  iiiconvoirK^iico  not  nri»iuir  fruu  gujicnoril)' 
or  del'oct  of  power  on  fiiihvr  side,  but  (rum  an  iujudicious 
exercise  oi  if 

§  y43.  The  ^atefl  with  this  concurrent  ))Ower  will  be  cntin-ly 
saff,  aud  have  amjtie  resoarce»  to  meet  nil  their  wauto,  whatever 
thejr  may  he,  although  few  public  expettacs.  componitivelj  speak- 
iuK,  will  fall  to  their  lot  to  provide  for.  They  will  l>e  chiefly  of 
a  dome&tic  character,  and  affecting  internal  polity;  whereas,  the 
resourcea  of  the  Union  will  oorer  tbo  vast  expenditures  ooca- 
sioued  by  foreign  intercouree,  warn,  an<!  other  charges  neoessary 
tor  the  safety  and  prosperity  of  the  L'nion.  The  nwre  ciril  list 
of  any  country  is  always  small ;  the  expenses  of  armies  and  na- 
vies and  foreiirn  relations  unavoidably  i^reat.  There  is  no  sound 
reusou  why  tb«  Htatcs  should  ]>oBsess  any  ezeliuive  power  over 
sources  of  rcrenuc  not  required  by  their  wants.  But  there  is  the 
most  urgent  propriety  in  conceding  to  the  Union  all  which  tnajr 
bo  conunensuratc  to  their  wants.  Any  attempt  to  discriminate 
between  the  sources  of  revenue  wonld  leave  too  much  or  too  little 
to  the  States.  If  the  exclusive  power  of  external  taxation  were 
given  to  the  Union,  and  of  intcrmal  taxation  to  tbo  States,  it 
would,  at  a  rough  calculation,  probably  give  to  the  l^tates  a  com- 
mand of  two-thirds  of  the  resources  of  the  community  to  defray 
from  a  tenth  to  a  twentietb  of  its  expennes:  and  lo  the  Union, 
one-third  o(  the  resonrces  of  the  eummunily  (o  defray  from  ninc- 
tentha  to  nineteen -twentieths  of  its  expenses.  Huch  an  unequal 
distribntion  is  wholly  indefetisiliks  and,  it  niity  be  addiMl,  that 
tJie  resources  of  tlio  Union  would  or  might  Iw  diminished  eiactly 
in  proportion  to  the  increa«e  of  demands  upon  its  treasury ;  for, 
as  has  ))een  already  seen,  war,  which  brings  the  great  expendit- 
ures, narrows,  or  ut  least  may  narrow,  the  resources  of  taxation 
from  dntie«  on  imports  to  a  very  alarming  degree  If  we  enter 
any  other  lino  of  discrimination  it  wilt  be  equally  dilliciilt  to 
adjust  the  proper  proportions;  for  the  inquiry  itself,  in  respect 
to  the  future  wants,  as  well  of  the  States  as  of  tlie  Union,  and 
their  relatire  projwrtion,  must  involve  elements  forever  chan- 
ging and  incapable  of  any  precise  asccrtutiunent     Too  much  or 

■  Hm  Fedenlwt.  K«&  99.  8«i  1  KlUot'*  Dob.  S07,  808  i  Id.  »!,  833. 


696 


CONe»riTL"nOK  OV  THE  UNTTBD  STATEii.  [BOOK  III. 


too  little  would  forever  be  found  to  belong  to  tho  States,  and  the' 
States  aa  veil  aa  the  Cnion  mif^t  be  endtngerod  by  the  very 
precauliooa  to  guard  againat  abuM«  of  power.'  Any  sciuirntion 
of  the  subjocta  of  revenue  which  could  have  been  fultea  u|Kja 
would  have  amounted  to  a  sacrifioc  of  tho  interc^tM  of  the  Union 
to  tht'  power  of  thu  iiidividuiil  8tatC8,  or  of  n  HUrn-odtT  u(  impor- 
taut  fujK-tiotu  bj-  the  latter,  which  would  have  removed  them  to 
a  mean  provinuiul  servitude  and  dependence.' 

§  944.  Other  objoctiotu  of  a  specious  character  were  urged 
ngaingt  confiding  to  Congress  a  general  power  of  tuxatioo. 
Among  these  none  were  insisted  on  with  more  (retjuency  and 
eamcstiieKs  than  the  iucapacitj'  of  Congress  to  judge  of  tlte 
proper  subjects  of  taxation,  considering  the  diversified  interests 
and  pursuils  of  the  i^late^  and  the  impracticability  of  repn^sent- 
ing  in  that  iMMlir  all  their  interests  and  pursuits.'  The  principal 
pressure  of  this  argument  has  been  already  examined  in  tlu;  sur- 
vey already  taken  of  the  structure  and  organi7.ation  of  tho  Senate 
and  House  of  Bepresentatiree.  In  truth,  if  it  has  any  real  force 
or  efficacy,  it  is  an  ar^inent  againat  any  national  jrovcrnmcnt 
having  any  efficient  national  powera,  and  it  ia  not  necessary  to 
repeat  the  reasoning  oa  which  the  expediency  or  necessity  of 
such  a  government  has  been  endeavoriy]  to  he  dem^insl  rated. 
And,  In  respect  to  the  particular  subject  of  taxation,  there  is 
quite  as  much  reason  to  suppose  that  there  will  be  an  adequate 
■aflembtagc  of  experience,  knowledge,  skill,  and  wisdom  in  Con- 
gress, and  us  adequittc  means  of  ascertaining  the  proper  bearing 
of  atl  tasce,  whetlicr  direct  or  indirect,  whctlicr  affecting  ■gri- 
cuUurc,  commerce^  or  nuiuufacturcs,  as  to  discharirc  uny  oUior 
functions  delegated  to  Congress.  To  suppuHo  othcrwiao  is  tu 
suppose  the  Union  impracticable  or  mischievous.* 

§  94.5.  Otiier  objections  were  raised  on  tJtc  ground  of  the  mul- 
tiplied means  of  intluence  in  tJic  national  governuicnt,  growing 


■  Th*  rml«t«litt,  N'o.  31 ;  1  Tuckn't  BUek.  Comm.  ApfiL  SSi,  SU,  2Sd. 

*  Tli«  FwlunlLsl  cakul*t«l  tint  the  bijheat  pcotMhls  tDm,  requiivl  tvr  tba  nidtnaiT 
I'-nnanoiil  vxfrnea*  of  my  State  ({oTcnMBMt,  KouM  bot  (xcmJ  ■  mlllMin  «f  ihJUn. 
Bal  Uiat  of  tin  llDkiD.  it  wm  nnnM)!,  tnU  not  b«  swMptiUa  «l  *uj  uut  huhw*. 
The  Fttkralut,  No.  34. 

■  Tt»  FwltialMt,  NodL  35,  Se :  I  BtiDt-a  Dvb  SST  to  tW ;  ld.SDaia»lS.  1  Thdc 
«'*  Blxk.  Coinm.  App.  Str,  333  1  3  Elliot'i  Deb.  96 ;  liL  18ft.  ISd  to  ISS ;  liL  301, 
:D3,  SOS :  M.  333.  tu  1  3  EUiot'i  DnlxlM.  77  to  VI. 

*  Tlw  FoknJut.  No.  SS,  34,  II,  IS  :  t  Tutkn**  Bhok.  Caiim.  hfV-  t4l,  945. 


CH.  XIT.] 


POWEBB  OP  CONaREBB  — TAXB8. 


697 


out  of  the  appaintm^nU  to  oBice,  Qpcfitisury  in  the  collection  of 
tJie  rerenuca ;  tlic  btmt  uf  ofticcrB  which  would  Hirann  over  the 
land  lik«  locuBtn  to  dcvoor  tta  ftubstancc,  and  the  terrific  oppres- 
eiunH  n.'siiltia};  from  dutiblv  taxes  and  harsh  und  arbitrary  rvgu- 
latioDfi.'  Tbcsc  objections  wore  aimwurvd,  lui  well  might  Iw 
guppoded,  hy  appeatn  to  common-sense  and  common  experience; 
ajiil  ther  are  the  less  neccaearj  now  to  be  refuted  nince,  in  the 
actual  practice  of  the  government,  tbef  have  been  proved  to  he 
vigionarf  and  fallaciouB,  the  droama  of  speculative  atateamcn 
itidulirinir  their  love  of  ingtriiious  paradoxes  or  the  supiReationB  of 
fcur,  fltimulutcd  by  diiKontcnt,  or  carried  away  by  phantoms  of 
the  imagination.* 

§  946.  But  ajiother  cxtraonlinarr  objection  which  shows  how 
eaittly  men  may  persuade  themselves  of  the  truth  of  alinust  any 
proposition  which  temporary  interests  or  excitements  iiidiico 
them  to  IK-Iieve,  was  lir|^  from  the  North;  and  it  was,  that  the 
impost  would  be  a  partial  tax,  and  that  the  Suutheni  States 
would  pay  btit  little  in  comparison  with  the  Northern.  It  wns 
refuted  by  uiuinswerable  reasoning,*  and  would  hurdly  deserve 
mention  if  llic  opposite  doctrine  had  not  been  recently  revived 
and  propagated  witli  abundant  iceal  at  the  South,  that  duties  on 
importations  fall  with  the  most  calamitous  ineqmility  on  the 
Southern  States.  Nay,  it  hug  been  seriously  urged,  tliat  a  single 
Southern  State  is  burdened  witli  tlio  payment  of  more  than  half 
of  tho  whole  duties  levied  on  foreign  goods  throughout  the 
Union. 

§  &47.  Again,  it  was  objected  that  tjiere  was  no  e«rtainty 
that  any  duties  would  bo  laid  on  importations,  for  the  Honthem 
States  might  object  to  all  im}>08l8  of  this  nature,  as  they  have  no 
manufactures  of  their  own,  and  consume  more  foreign  goixls  than 
the  Northern  States,  and,  therefore,  direct  taxes  would  be  the 
oomnioti  resort  to  BU]»pIy  revenue.'  To  which  no  other  answer 
Deed  be  given  than  that  the  nile  of  ap|>ortionment  as  well  aa  the 
inequalities  of  such  taxes  would,  undoubtedly,  produoo  a  strong 


>  'ni>r<>denlkt,KcL3«;SBIUo('i[MialM^S3,53.TI>;  Id.  30»  ;  3  EUot'i  f)«)MMv 
U2,  303  i  2  Amerioui  Uiuma,  M. 

>  TbB  PedMmlMl.  Ho.  »a :  X  AMriiM  MnMU,  SSI;  341  ;  1  QUotV  Dob.  SI.  IBS. 
S>i.  300  to  »2  :  I<1.  337.  S3S  ;  S  EUiM'*  IM>.  B8  ;  M.  108  to  »l. 

*  ^M  Mr.  EUtwonb'i  8{>Mh,  3  AhmiUsq  Hiwmn,  333,  IIO. 

*  1  EUioVt  Debate^  M,  »U 


S  coKsrrmmoK  op  tbb  DttfTeo  states.        [book  m. 

disinclioation  in  the  nation,  and  Sjwoinlly  in  the  Southern  States, 
to  resort  to  tliciii,  unlivs  und«r  extraordinary  circiimi»tanc<«.' 
An  objevtiutt  of  a  directly  opposite  character  wa»  altto  taken, 
namely,  iliut  the  power  of  laying  direct  taxes  was  not  proper  to 
be  prantfd  to  the  national  govcrnmt'nt,  lM><:autie  it  was  unnecee-^ 
sary,  Impracticable,  unsafe,  and  accumulative  of  exponae.*  This 
objection  ali«o  wa«  sliovn  to  be  unfounded,  and,  indeed,  nndur 
Mrtaiu  exigencies  whicb  have  been  already  alluded  to,  the  na- 
tiOTuil  government  might  for  want  of  it  be  utterly  pnwtrated.^ 

§  948.    Other  objpctiona  were  nrgcd,  which  it  t/evtoB  unneci'»-( 
sary  to  enumerate,  as  they  were  either  temporary  in  their  natunr  , 
or  were  more  auxiliaries  to  those  already  mentioned.     The  ex- 
perience of  tlie  national  governraent  baa  hitherto  lihijwn  the  on-, 
tire  safety,  practicability,  and  even  neccasity  of  its  potutoteing  tha  ' 
gcnenil  power  of  taxation.     The  States  havs  vxcrcieud  a  concur- 
rent power  withoMt  obstruction  or  inconvenience,  antl  enjoy  rev- 
enues udequutc  to  all  their  wanta ;  more  adequate,  indeed,  thaa 
they  could  posHibly  poesess  if  tJie  Union  were  abolished,  or  tbe 
national  go\'ernnient  were  not  vested  with  a  general  power  of 
taxation  which  enables  it  to  provide  for  all  ol>jects  of  common 
defence  and  general  welfare.     The  triumph  of  tho  frieuihi  u(  tba  < 
Constitution,  in  securing  this  great  fundamental  sourco  of  all 
real,  effective  national  soreri^ignty,  woa  mutt  Hipial:  and  it  is 
the  noblest  monument  of  their  wisdom,  putriotism,  and  inde- 
pendence.    Popular  feelingft,  and  popular  prejudie««,  and  local 
interests,  ami  the  pride  of  State  nuthonly,  and  tho  jealousy  of 
State  sovereignty,  were  all  against  them.    Yet  they  werv  nut  (lia- 
mayod ;  and  by  steadfast  appeals  to  reason,  to  the  calm  sens«  of 
the  people,  and  to  the  leadons  of  historr,  they  subdin-d  <i\>--      *  '    i 
and  won  conlidcnoe.     Without  tlie  possessioit  of  (liis  |h<^> 
Cofiatitntion  would  have  long  since,  like  tho  confederalinn,  have 
dwindled  down  to  an  empty  pageant.      It  would  have  hrcmna  aa 
unreal  inoekery,  deluding  our  hopes  and  exciting  our  fears.     Ik 
woold  have  (lilted  before  ns  for  a  moment  with  a  pale  and  in- 
effectual light,  and  then  hare  departed  forever  to  the  laud  of 


>  ITnck-BlKk.  Coiiiiii.App.SS4  t«!»;  THFpbdi>ra)Ut,Knt.  13,71,  Mi  milM'* 
DcbttM.  «1,  «t ;  3  CIltDl-i  OtbaU^  105  :  3  Elllot'a  tMmXm.  T7  ta  >1 ;  8  Journ.  uT 
Conlia«DL  Cobgrt^i,  leili  Dm.  1791,  f.  SOS. 

•  S  RIllM-*  Mm.U%.  Ur  to  SOI  i  Id.  SaS,  »3.  389 :  S  EIlMt'i  JMmo,  77,  >1- 

■lUd. 


CH.  XIV.] 


POWBKS  OP  COKGBSas  —  TXXSB. 


CS9 


shadoira.  There  is  ao  mnch  candor  and  force  in  tho  t-fnnarkfi  nf 
tlic  learned  American  coninu'Utator  on  Bla<;k8l(mc,  on  tbin  anl)- 
jcct,  that  they  deserve  to  be  cited  in  thin  place.'  "A  candid 
review  at  Ihiti  part  of  thu  ftNlcral  Coiwlitiition  cannot  fail  to  ex 
cite  uur  just  upiilausc  of  the  pi-iiiciplcs  U|K^iu  whicli  it  is  founded. 
All  the  aiyurncnts  ngniiist  it  appear  to  have  been  drawn  from 
the  incx]icdicn4^y  of  VBtAbllKhing  such  a  form  of  ^VL-rnmr'nt, 
rather  Umn  from  any  defect  in  thi»  part  of  the  it_\'stem,  ndmitlin); 
that  a  general  government  was  aeectmarj  to  tho  hapftinras  and 
pnwjx-rily  of  the  St«t««  individnulty.  Tliis  gnat  primary  qnos- 
tiuu  being  once  decided  in  tlie  uffiniiatii-c,  it  mif^lit  be  diflictilt  to 
prorc  that  any  port  of  the  powers  granliMl  to  CongrcsH  in  this 
clause  ought  to  liave  been  altugetbcr  withheld;  yet.  Wing 
granted,  rather  as  an  ultimate  provtsioo  in  any  iMMsible  case  of 
emergency  than  as  a  means  of  ordinary  revenue,  it  is  to  he 
wiithcd  that  tlie  exercise  of  powers,  either  opprptwivfi  in  their 
o))eration,  or  inconsistent  vnth  the  genius  of  the  people,  or  irrec- 
oncilable to  their  prejudices,  might  he  reserved  for  cogent  oeca- 
sioiLs  which  might  justify  tlie  temporary  recourse  to  a  lesser 
evil,  as  n  means  of  avoiding  one  more  permanent  and  uf  greater 
magnitude  " 

§  949.  T^c  language  of  tlw  Constitution  is,  **Congn?M  shall 
have  power  to  lay  and  collect  taxes,  duties,  im)>0»ts,  nnd  excises," 
etc  **  But  all  dutits,  imp'tst*.  and  rrnV*  shall  be  uniform 
throughout  tlic  United  States."  A  distinction  is  here  taken  be* 
tvecn  taxes  and  duties,  imiMwts,  and  excises; (a)  and,  indeed, 
there  are  other  parts  of  the  1%>nstitution  respecting  the  tailing 
power  (as  will  presently  be  more  fully  seen),  such  as  the  regu- 
lations i-efl|ieeling  direct  taxes,  the  prehibition  of  taxoii  nr  diilii-s 
on  exports  i)y  the  I'nited  States,  and  the  pn)hibition  nf  in]|Hisls 
or  datics  by  the  i^tates  on  imports  or  exports,  which  require  an 
attention  to  this  distinction. 

§  9i)0.  In  a  general  sense,  all  contriinitions  imposed  hy  the 
government  upon  individuals  for  the  service  of  the  State  are 
called  taxes,  by  whatever  name  they  raay  be  known,  whether  by 
the  name  of  tribute,  tythc,  tulliap:.  imjKJst,  duty,  |?nbc1,  custom, 
subsidy,  aid,  supply,  excise,  or  other  name.'    In  this  scusc  they 

>  I  TMkrt'a  BUdt.  Carooi.  Jlpp.  MA. 

■  ftca  !  Stuut'*  PdlL  Koon.  tSG  ;  iTnck.  DkelLConim.  Ai>|i>.SSS:  IBhuk.Coran. 

(a)  Sw  SeboUj  >.  BmJ,  -a  Wail.  SSI ;  C^Khf,  (-'«»t.  liffl.  «08,  «tk  «iL 


700 


CON&TITUIJON   OP  TBB  UNITKD  STATES.  [BOOK  JII. 


are  osaally  divided  into  two  groat  clamcs,  those  which  aro  direct 
and  those  which  are  indirect  Under  the  former  donomination 
are  included  taxt-s  on  land  ur  roal  properly ;  and  undor  the  lat- 
ter, tiLxra  on  artielud  uf  cuusuuipl ion. >  The  Constiliilion,  hy 
giving  the  power  to  lu}-  uud  collect  taxes  in  general  tcniu,  doubl- 
U-iM  meant  to  iiichide  all  aurU  of  tax«s,  whctlier  direct  or  iitdi- 
reut.^  Bill  il  mAy  be  aakod,  if  such  was  the  intention,  why  w<^>ni 
the  Hubseqtient  words,  4tUit*,  impmli,  and  exeistt,  added  in  Uic 
clause?  Two  reasons  may  ho  suggested;  tlio  liritt,  tlmt  it  was 
done  to  avoid  all  possibility  of  dottbt  in  the  construction  of  ihe 
clause,  since,  in  common  parlance,  tho  word  taxes  is  soaietiues 
applied  in  contradistinction  to  duties,  imposts,  nnd  exciseR,  and, 
in  the  delegation  of  so  vital  a  power,  it  was  de^sirable  to  avoid 
all  poaftible  misoonoeption  of  this  sort;  and  accordingly  we  find. 
in  the  very  first  draft  of  the  Constitution,  these  explanatory 
word?  are  added.^  Another  reason  was,  that  the  Constitntion 
preecribod  different  nilcs  of  laying  taxes  in  different  cases,  and 
therefore  it  was  indispenaohle  to  make  a  diwrimination  between 
the  clasRcs  to  which  each  rule  was  meant  to  ap^ily.* 

§  951.  The  second  section  of  the  first  article,  which  has  been 
^already  commented  on  for  another  purpose,  declares  tliat  *^dir«et 
taxes  shall  be  apportioned  among  tlie  several  Stales  which  may 
be  included  within  this  Union,  atworditig  to  their  rexjiectivo 
numbers."  The  fourth  clati^c  of  the  ninti)  section  of  the  same 
article  (which  would  regularly  be  commented  on  in  a  future 
pofre)  declares  that  "no  capitation,  or  other  direct  tax,  shall  be 
laid,  unless  ill  proportion  to  tho  census  or  enumeration  hcreio- 
beforo  directed  to  be  t^ikcn."  And  Uie  clause  now  under  consid- 
eration, lliat  "all  duties,  imponts,  and  excises  shall  bo  uuifurm 
throughout  the  United  States."  Here,  then,  two  rulca  are  |>rc- 
scribed,  the  rule  of  apportionment  (as  it  is  culled)  for  direet 
taxes,  and  the  rule  of  uniformity  for  dutiet,  intpotta,  and  exeitta. 
If  there  aro  any  other  kinds  of  taxes  not  embraced  in  one  or  the 
other  of  tliese  two  classes  (and  it  is  certuinly  diDieult  to  ^v« 

306 1  SltaU.  R.  171;  flnith'i  WatltbofNolon^  B.  S.di.  Si  B.  S.  <k.  «,  T.  %  P.  S, 

Ut.  4. 

>  Th*  FodsMlUt.  Xm.  SI,  34  i  1  Tuck.  Bkok .  CWam.  S33.  338.  330 :  SniUi'a  VMltfa 
of  K*tloiM^  B.  £,  fL  3,  Pi.  S,  Oft  1  and  3:  uid  App. 

*  LooghboK-n^  n  Bkk«,  &  WliMt.  R.  317.  313.  310. 

*  Jonn*]  of  CoiiMatua,  StO. 

*  H;li«a  (.  0i>iw<)  Sum,  3  DM.  171, 171. 


CH.  XIT.] 


POWKKB  OP  COXORKB  —  TAIM. 


701 


full  effect  to  the  words  of  the  Constitution  without  tiippming 
them  to  exist),  it  would  seem  tliat  Oongreait  is  left  nt  full  liberty 
to  lerjr  the  Bame  by  either  rale,  or  by  &  mixtare  of  both  nilfis,  or 

LperhapH  t>y  any  other  rule  not  inconsiAtent  with  the  )^:-iiera1  piir- 
e»  of  the  Constitution.'  It  is  evident  that  "dulicis  imposts, 
and  esciaeB  "  are  indirect  taxes  in  the  sense  of  the  Constitution. 
Bill  th«  difhculty  still  n>inain!k  to  ascertain  what  taxes  are  cmi- 
pn-hfUiiiHl  under  this  dcHuription,  and  what  under  the  description 
of  direct  taxes.  It  has  bc«n  remarked  by  Adam  Hniitli,  that  the 
private  revenue  of  individuals  arises  nltimalelyfroni  three  differ- 
ent sources,  rent,  proht^  and  wages;  and  that  every  jiuhlic  lax 
muat  bo  finally  paid  (nan  some  one  or  all  of  thrae  different  sorts 

■  of  roTenue.*  He  treats  all  taxes  upon  land,  or  the  produce  of 
land,  or  upon  houses,  or  parts,  or  ap|)endagea  thereof  (such  ns 
hearth  taxes  and  window  taxes),  under  the  head  of  taxes  upon 
ent;  all  taxes  upon  stoelc  and  money  at  interest,  upon  other  pcr- 

'sonai  property  yielding  an  income,  and  upon  (mrtieular  employ- 
uienUi  or  branchca  of  trade  and  linsiness,  under  tlie  head  of  taxes 
ou  pruGts;  and  taxes  upon  salaries  under  the  head  of  wafces.  He 
treats  capitation  taxes,  and  taxes  on  cuiuuniable  articles,  as 
mixed  taxes,  falling  upon  all  or  any  of  the  different  species  <d. 
rerenuo.*  A  full  consideration  erf  these  different  classiltcationa 
of  taxes  belongs  mora  properly  to  a  treatise  upon  political  econ- 
omy than  u|H)n  constitutional  law. 

§  95'Z.  The  word  "duties"  luis  not,  porlui|is,  in  all  cases,  a 
very  exact  stiniificatioii,  or  rather  it  is  used  sometimes  !n  a  larger 
and  Bomelimes  in  a  narrower  sense.  In  its  lai^  sense,  it  is  very 
nearly  an  equivalent  to  taxes,   embracing  all  impositions  or 

rOhargea  levied  ou  {>erso»s  or  things.^     In  its  more  restrained 

'■onsc,  it  is  often  lued  as  equivalent  to  **c»Htomft,"  which  appel- 
lation is  usually  applied  to  thoM  taxes  which  are  ]uiya])le  U]>on 
ifls  and  merchandise  im|>orted  or  ex(>orted,  and  was  pi-obahly 

'given  on  aeeount  of  the  luiial  and  constant  demand  of  tbein  for 
tbe  QM  of  kings,  states,  and  governments.*     In  this  sense,  it  ia 

>  BrltoD  *.  Cnltnl  8f.U%  t  DtIL  R.  171. 

■  SmiUi'i  Wctlib  of  KaUeo*.  B.  &,  oh.  a,  P.  S. 

■  Bmlth-i  WmIiIi  <J  Natkoi,  B.  »,  ck.  8,  P.  «,  Ut  t,  9,  8,  4. 
•  Bm  tht  FtimibO,  K&  80. 

I  Bmitli'aWnltiicf  K>lion%a4.ck.l.P.S:B.a.Gb.l,art.4;  H>bonCM<nii% 
S.  Tnct^  p.  IIS^  ke;  1  BImLCodib.  319,  S 14,  SIS,  914;  C«n.  Dig.  AwnyoMn; 
ID.  49  to  D.  4». 


702 


cossTmmoN  op  the  ositkd  statis.        fsooK  in. 


ncorlj-  synoDymoiis  v)th  ** imposts,"  whicli  in  sometimes  used  in 
the  l*r|ic  sense  of  taxes  or  duties  or  impositions,  and  sometimes 
in  the  more  restrained  sense  of  a  duty  on  imported  Roods  and  m«r-i 
ohandise. '     Perhaps  it  is  not  unreasunublo  tu  presume  that  thifl 
ruirroirer  sense  mij^t  be  ia  tho  minds  of  the  frameni  of  the  Cotk- 
slitution  when  this  clause-  was  adopted,  since,  in  anotht-r  vUuwe; , 
it  is  mihsoquuntly  providwi  that,   "  No  tax  or  duty  fhall  Ire  laid! 
on  artidt-s  exporUd  from  any  State, "  and  that  "No  Slat«  shall,] 
without  the  consent  of  Couirress,   lay  any  impotta  or  dtUit9  go 
importa  or  exports,  except  what  niuy  he  absolutely  necessary  for 
exccutinf^  its  inspection  laws."*    I'hei'e  Is  another  provision, 
that  "No  State  shall,  without  tite  cmuietit  of  Cnngross,  lay  an^ j 
dutg  of  tuimaye,"  etc.,  from  which,  perhaps,  it  may  be  gathered 
that  a  tonnage  duty  (by  which  is  to  be  understood,  nut  the  an- 
cient custom  in  i^glaiid,  so  called,  on  wines  imported,'  but  a 
duty  on  the  tonnage  of  ships  and  Tcssels)  vos  not  deemed  an  i'm- 
poKt  strictly,  hut  a  tlvty.     Hovevei-,  it  must  be  adaiitteit  that 
little  certainty  can  be  arrived  at  from  such  slight  changes  of 
phraseology,  where  the  words  are  susceptible  of  various   inter- 
pretations, and  of  more  or  less  expansion.     The  most  that  can 
be  done  is  to  offer  a  probable  conjecture  from  the  ap|iareut  use 
of  words  in  a  connection  where  it  is  desirable  not  to  deem  any , 
(Hie   sui>erfluous,    or  syiiouymous  with  the  otiicrs.     A    leamt-d ' 
commentator  has  supposed  that  the  words  "duties  and  imposts  ** 
in  Ihe  Constitution  were  probably  inti?n<K-d  to  euiiipreiii-nd  cTt-rT 
•pccics  of  tax  or  contribution  not  iiicliidol  under  Uie  »i-dinary 
terms  ^taxea  and  excises."*    Anotlier  learned  jnd^  has  said,' 
"What  is  the  natural  and  common,  or  technical  and  appi 
meaning  of  the  words  dittji  and  exchf,  it  is  not  easy  t»  a?i 
They  {vesenf  no  clear  or  precise  idea  to  the  mind.     Uifferent 
pcraoDB  will  annex  different  siimili<'atioRs  to  the  terms. "    On  the 
same  occasion,  another  learned  judge  said,  "The  term  dntj/  is 
the  most  compreheusi^'e,  next  to  tho  generical  term  tax;  and 

<  Tht  Pedmlitt,  ITo.  30  :  3  Elliot'i  Delnta.  3Sd. 

*  Ur>  Uadinn  ii  of  opnucoi  tb«  tonoii  imp«M  ani  dittit,  in  Aim  eUnmt  an  nsdl 
H  ■ynoojiMiu,  Tbora  b  much  Inroe  to  bii  nQMllciiM.  Ur.  JIa<1Ik>ii'*  Uuht  ■»-' 
Hr.  C*bi3i,  18th  Stpt.  1838. 

*  1  Black.  Caaun.  SIS;  H*)*  m  Dntonu,  Rug.  Lav  Tncia,  p,  3,  tl.  7.clb  If, 
ck  15. 

*  I  Tiacfc«T'a  Bbck.  Vomm.  App.  213. 

*  Hi.  JiuUm  PrtUnem  is  iljrItOB  «.  United  SUI«^  3  tKOI.  R.  171,  177. 


CH.  XIV.] 


P0WEB9  OP  CONflBESR  —  TIZU. 


708 


[prtcticallr  in  flreat  Britain  (whence  w«  take  oiir  fieneral  ideas  of 
t(«,  duties,   imposta,  vxcisea,  customs,  etc.)  embracer  taxes  OD 
Binpa,  tolle  far  paiiaage,  etc,  and  is  not  confined  to  taxes  on 
importations  only," ' 

§  i).'>'ti.  "i'kciws"  are  geoerallr  deemed  to  be  of  an  0|>p08itc 
nature  to  "  impofits, "  io  the  restrictive  seiuM!  of  the  latter  t^nn, 
^■nd  arc  dcfmi-d  to  be  an  inland  ini{Miisition,  paid  aomctinieti  upon 
coDsuinpticiu  of  tlie  cunimoditj,  or  fnri|iiL-ntly  upon  the  retail 
ftale,  which  in  the  last  stugc  before  the  conaumptitHi.' 

§  954.  But  the  more  iui|M>rlunt  inquiry  in,  wliat  are  direct 
taxes  in  the  scune  of  th«  Couxtilutiuii,  uiace  they  are  required  to 
be  laid  by  the  rule  of  apportionment,  and  oil  indircut  taxes, 
wlietlier  iIr-v  fall  under  the  bead  of  "dtitics.  imposts,  or  ex- 
ciaea,"  or  under  nur  otli«r  description,  may  be  laid  by  the  nile 
of  uniformity  ?  It  is  clear  that  capitation  taxcs,'(a)  or,  hm  they 
more  commonly  called,  poll-taxee,  tliat  is,  taxes  upon  th« 
^polla,  heads,  or  [keraonH  of  the  eoatributora,  are  direct  taxes,  for 
the  Constitution  haa  expressly  ennmerated  them  as  such.  "  No 
capitation,  or  ofhur  dintet  tax,  shall  bo  laid,"  etc,  is  the  Ian- 
iiage  of  Uiat  inatrument 

§  955.  Taxc«  on  lands,  hoiHes,  and  other  permanent  real  es- 
teto,  or  on  parts  or  appurtenances  tliercof,  liare  aliraya  bei-u 
adeemed  of  tlic  some  character,  that  is,  direct  taxes.*  (A)  It  lias 
m  seriously  doubted  if,  in  the  sense  of  tlie  Constitution,  any 
taxes  are  direct  taxcJt,  except  those  on  polls  or  on  lands.  Mr. 
Justiee  Chiuie,  in  Hylton  r.  United  States,' (<-)  said,  "I  am  in- 
clined Io  think  that  tlie  direct  taxes  contemplated  by  the  Consti- 
tutioa  are  onlif  tiro,  namely,  a  capitatltMi  or  poll-tax  simply, 
bVithont  reirard  to  property,  profesaion,  or  <rther  cin-umatance, 
id  a  lax  on  land.     1  doubt  whether  a  tax  Ity  a  general  assesa- 

*  Hr.  JwtiM  ChtM,  Id.  174.    Sm  The  FdenlUt,  Xo.  34. 

*  1  BI»ck.  CoaiK.  318  ;  1  Tvk.  BUck.  Catam.  Apfi  S41  ;  Smith'*  WmIUi  of  lf«- 
L-tfcni.  &  9,  di.  8,  an.  4  ;  S  Kllbit'*  ntbtim,  90»;  S  Ellint'*  IVI«1«<v  t»»,  SOl 

*  See  1  Snutli'i  W«allti  of  H4U0W.  B.  S,  a^.  3.  art.  <  ;  Tbo  Fnlcntitt,  So.  811 :  t 
'  Etilot'*  Dohain,  S0>. 

*  1  TtKk.  BUnk.  Comm.  App.  tsi,  1S3  ;  n;lt«B  «  L'Mtnl  Siato.  9  VtiSl  R.  ITI : 
^The  r«l<nlitt,  Xo.  SI ;  IxnghborooKh  «.  Bkk^  S  WhMt.  B.  SIT  la  StS. 

*  S  0*U.  R.  in. 

<»}  Sprtn^r«.IIaU«dStalai,101tT.8.  <«|  8m  PMiOc  limnncaCo.  B.8onH 

esa.  7  WiiL  m. 

(if  springer  *.  tJnitnl  8utM,  tufroi. 


g^ 


T04 


CONSTITtTTION  OP  THK  UKITOI  BTiOiEB.  [BOOK  HI. 


ment  of  personnl  property  within  the  United  States  is  included 
witbin  the  term  direct  tax."  Mr.  Jniitico  Patterson,  in  the  sania 
ease,  said,  "  It  is  not  neceflKary  to  determine  whether  a  tax  oii 
the  produce  of  land  l>e  a  direct  or  an  indirect  tax.  Terhaps  the 
immediate  product  of  land,  in  its  original  and  erode  state,  aofitt 
to  be  considered  aa  a  [tart  of  the  land  itacif.  When  the  produce 
is  converted  into  a  mauiifaflurc,  it  aaaumes  a  new  akapo,  etc. 
Whether  *  direct  taxes,'  io  the  aenso  of  the  Conatitution,  com- 
prehend any  other  tax  than  a  eapitution  tax,  or  a  tax  on  land,  is 
a  questionable  point,  etc  t  iiuver  entertained  a  doubt  that  the 
principal,  I  will  not  say  the  only,  objects  that  the  fnunera  of  the 
Constitntion  contemplated,  as  falling  witliiu  the  rule  of  appur- 
tionment,  wore  a  cupilatioo  tux  and  a  tax  on  tand."  And  be 
proceeded  to  state  that  tho  rule  of  apportionment,  both  a«  regards 
rcprcBcutntives  and  as  rcfrards  direct  taxes,  was  adopti'd  to  goard 
tbo  Southern  t^tatea  against  undue  impositions  and  oppreMioaa 
in  the  taxing  of  slaves.  Mr.  Jastiee  Iredell,  in  Uie  same  caae, 
said,  "Perhaiw  a  direct  tax,  in  the  sense  of  the  Constitution, 
can  mean  nothing  but  a  tax  on  soinetlitng  inseparably  annexed  to 
the  soil ;  something  capable  of  apportionment  midcr  all  saeh  cii^ 
cumstancM.  A  land  or  poll  tax  may  bo  considered  of  this  de- 
scription.  The  latter  is  to  be  considered  so,  particularly  under 
the  present  Constitution,  on  account  of  the  slaves  in  the  Southern 
.States,  who  give  a  ratio  in  tlie  representation  iu  tha  proportioa 
of  three  to  five.  Either  of  these  is  capable  of  an  apporlionmQoL 
In  regard  to  other  articles,  there  mar  possibly  }»:  cuiutiderable 
doubt"  The  reasoning  of  the  Federalist  seems  to  lead  to  Am 
same  result. '(a) 

§  956.  In  the  year  17&4,  Congress  passed  an  act  >  laying  datjea 
upon  carriages  for  the  conve^iuioo  of  persoiu  which  wcro  kept  by 
or  for  any  person  for  his  own  nsc  or  to  be  let  out  to  h'\n\  or  for 
the  conveying  of  passengers,  to  wit,  for  every  coach  the  yearly 
sum  of  ten  dollarg,  etc.,  and  made  the  levy  oiiiform  throngh- 


>  TW  TeienSA.  THat.  K.  ». 


*  Aaat  mt,  cL  U. 


(a)  Sine*  tht  <mt  nt  Rjltm  *.  United 
Stalci,  tbnvtiM  bnmliitUoMuiwMilb- 
eDat  lb*  fDMtlMvhit  nnudtnlMA  tfnKct 
fctt in tha tamiatMm^Mam.  In  FiHfic 
InmniMO  Oempnir  m.  Seals,  7  WiIL  III, 
it  wu  deeUvt  that  •  tex  iin|wcd  «i  tlie 


IiicoaM  of  ioMMDce  m>m]«ni«  tiaa  m(  * 
dlnet  tnl.  but  a  dst^  or  ntiM.  AaA  ia 
Vmia*  Bv>k  B  Fnmo.  8  KtO.  US,  •  u 
of  Urn  fer  c«itnm  nfon  tbr  dn-nlatiMi  «it 
St4l«  bank*  «u  Md  »«  a  dinr t  Ui. 


CH.  XIT.] 


POWBU  OP  CONGRBBB— TAXES. 


ro$ 


e  United  St«t«H.  The  conxtitutJonality  of  the  net  was  cod- 
■tcd,  in  th«  cue  before  sUted,'  iipon  Ui«  ground  that  it  wu  a 
fdircrl  tax,  and  80  ought  to  l>e  apportitned  among  the  States  ae- 
irding  to  their  nuni)>eni.  After  solemn  argument,  the  Supreme 
3ourt  decided  that  it  waA  not  a  direct  tax  witliin  the  meunin); 
of  the  Constitatioo.  llie  grounds  of  this  decision,  as  stated  in 
the  various  u]iinionii  of  the  judgen,  were:  Grat,  the  dniiht  whether 
any  tajtes  were  direct  in  the  seniio  of  the  Constitution,  l^ut  capita- 
tion and  land  taxes,  as  has  been  alreodjr  suggested;  accoudly, 
that  in  vase*  of  doubt  the  rule  of  apportionment  oii|;ht  not  to  )>e 
farort'd,  bccaiuff  it  was  matter  of  compromise,  and  in  itself  radi- 
cally indcfvauiblo  and  wronp;  thirdly,  the  monstrous  inc<iaality 
and  injiiHtire  of  the  (.■arriitgo  tax,  if  laid  by  the  nile  of  apportion- 
ment, which  would  show  that  no  tas  of  this  sort  could  have  been 
ontcmpiated  by  the  convontion,  as  within  the  rule  of  apportiott- 
ment;  fourthly,  that  tti*.^  termit  of  the  Constitution  were  satisfied 
by  confining  the  clause  respecting  direct  taxes  to  capitation  and 
land  taxes;  fifthly,  that,  accurately  speaking,  all  taxiTit  on  ex- 
Lpenses  or  consumption  are  indirect  taxes,  and  a  tax  on  carriages 
is  of  this  kind;  and  sixthly  (what  is  probably  of  mMt  cogency 
and  force,  uud  of  itself  decisire),  tliat  no  tax  could  bo  a  direct 
one,  in  the  sense  of  the  Constitution,  which  was  not  cu|»abte  of 
apportionment  according  to  the  rule  laid  down  in  the  Constitu- 
■tion.  Thus,  suppose  ten  dollars  were  contemploted  as  a  tax  on 
«ach  coach  or  post-chaise  in  the  United  States,  and  tJie  number 
of  such  carriages  in  the  United  Htates  were  one  hundred  and  flTc, 
and  the  number  of  representatives  in  Congress  the  same.  This 
would  produce  ten  hundred  and  fifty  dollars.  The  share  of  Vir- 
ginia wwild  be  y^  parta,  or  4190 ;  the  share  of  Connecticut  would 
be  ijp  parts,  orlfTO.  Suppose,  then,  in  Virginia  there  are  fifty 
carriages,  the  sum  of  9190  must  he  collected  from  the  owners  of 
Bc  carriages,  and  apportioned  among  them,  which  would  moke 
FMch  owner  pay  4S.80.  And  suppose  in  Connecticut  there  aro 
but  two  L-arrisges,  the  share  of  that  State  (^0)  mtist  be  paid  by 
lie  owners  of  those  two  carriages,  namely,  $85  each.  Yet  Con- 
in  such  a  case,  intend  to  lay  a  tax  of  but  ten  dollars  on 
each  coach.  And  if  in  any  State  there  should  )>e  no  coach  or 
post-chaise  owned,  then  there  could  l>e  no  apportionment  at  all. 
Tho  absurdity,  therefore,  of  such  a  mode  of  taxation  demonstrates 

1  S  DiUw'*  IWfnrti^  171. 
Yoi.  I.  — 4S 


cossnimos  or  thk  pnited  btatbs.        [book  in. 

that  such  a  tax  vaanot  be  ft  direct  tfix  in  the  seiwe  of  the  Consti* 
tutjon.  It  ia  no  unawer  (o  this  rcRsoning,  that  Con^reM,  having 
di'tortDmed  to  rnisc  such  a  auin  of  moD«f  &b  Roch  a  tux  on  car- 
riagta  would  produce,  uiiglit  apportion  the  sum  due  hj  the  mle 
of  apportioiiiucQt,  and  th«n  order  it  to  be  collected  no  different 
artli^k-s  selected  in  each  State  That  would  be,  not  to  lay  and 
collect  a  tax  on  carriagea,  but  on  the  articles  which  wero  made 
contribotory  to  the  paj'oient.  TIiuh,  the  tax  might  be  called  a 
tax  nn  carria^n,  and  levied  on  hor»«a.  And  Ibc  samt;  object  lun 
would  lie  to  an  appoitioninent  of  the  sum,  and  then  a  general 
asseflsment  of  it  by  C'ongreaa  upon  all  articlce.' 

§  %7.  Having  endeavored  to  point  out  the  leading  distioc- 
titma  between  direct  and  indirect  taxes,  and  that  duties.  EmpoHta, 
and  exciaea,  in  the  aenitc  of  the  Constitution,  belong  to  the  lat- 
ter claaa,  the  order  of  the  subject  would  naturally  lead  uft  lo  the 
inquiry,  why  direct  taxes  are  required  to  be  governed  by  tlie  rule 
of  apportionment,  and  why  "duties,  irapo«t«,  and  excise*"  are 
required  to  bo  uniform  {a}  throughout  the  United  Statex.  Tin 
answer  to  the  former  will  I>o  given  when  we  come  to  the  further 
cxamiualion  of  certain  prohibitory  and  restrictive  clauses  of  the 
Constitution  on  the  subject  of  taxation.  Tho  answer  to  the  lat- 
ter may  bc  given  in  a  few  words.  It  was  to  cut  off  all  undue 
preferenocA  of  one  State  over  another  in  the  regulation  of  aub- 
jocta  affecting  their  common  interests.  Unlcxs  duttea,  Jmiiosts. 
and  excises  were  uniform,  tho  groMcst  and  niuiit  nppn^s^ire  in- 
equalities,  vitally  affecting  the  pureuila  and  employments  of  tho 
people  of  different  States,  might  exiat  The  agriculture,  com* 
meroc,  or  manufactures  of  one  ^tate  miglit  bo  built  up  on  tlie 
ruins  of  thase  of  another;  and  a  combination  of  a  few  States  in 
Congress  might  secure  a  monopoly  of  certain  branches  of  trade 
and  busim-ss  to  themselves,  to  the  injurj-,  if  not  to  the  di>atruc- 
tion,  of  tJieir  less  favored  nciglibors.  The  Constitution,  tliroogh- 
out  all  its  prorisiona,  is  an  instrument  of  checks  and  rustruinls, 

>  8  DtUu't  Rtforia,  171  ;  SUmU  an  Con«L  ck  S  ;  t  Eltiot't  T>*tit  StS ;  I  K«»'( 
Cmum.  UeL  13,  pp.  iSP.  MOi  ]  Tuck.  BIwk.  Camm.  Afp.  »i. 


(a)  fniforaitt;  ion  not  nCct  to  tho 
nut  of  toutkn,  *o  u  to  nqniK  ill  kiada 
nf  proptitj'  U>  bt«r  a  fmpiTilonaUi  bui. 
den,  hilt  to  til*  «hjc«t  «t  tuktian.  Tim*, 
•rticlaa  maiUiaMM  SUtBOiiiiiMba  tas«d 


iaaaotberimlMi  diCMJneldiwJ  of  irticka 
nuda  at  bom*  an  tax*d.  and  xiiHlly 
Mt'4.  8m  TWumi  v.  Ktiitirt,  ]D3  |}.  S. 
13S. 


en.  XIV.] 


POWKBS  OP  C0XGBIB3  —  TAZ1IS. 


707 


as  well  08  of  powers.  It  doo»  not  rely  on  confidence  in  the  p-n* 
eml  government  to  preserve  the  intercstA  of  all  the  States.  It  is 
foonded  in  a  wholesome  and  strenuous  jealousy,  which,  foresee* 
ing:  the  poAHiliility  of  miochief,  guards  with  solicitude  against  any 
eiercisc  of  [lower  whirh  may  endanger  the  States,  as  far  as  it  is 
practicable.  If  this  provision  as  to  uniformity  of  duties  had 
bt-en  omitted,  althuiif;h  IIm^  [wwcr  miEflit  never  have  hecn  abiiaed 
tjj  the  injury  of  the  feebler  States  of  the  Ciiion  (a  pruHumption 
which  hist«r>'  does  not  justify  us  tu  dvcminp  quite  safo  or  cer- 
tain), yet  it  would,  of  itself,  have  been  suflicient  tu  dcmolisli.  in 
a  pructical  sciuc,  the  value  of  most  of  the  other  restricti^'o 
claoses  In  the  Constitution.  New  York  and  Pennsylvania 
ini)il>t,  by  an  ensy  combination  with  the  .Southern  States,  Iia\-e 
destroyed  the  whole  navi^tion  of  Now  Kngland.  A  combination 
of  a  different  cbaraotcr,  between  the  New  England  and  the 
Western  Statea,  mijiht  hare  home  down  the  agrioullure  of  the 
Sooth ;  and  a  combination  of  a  yet  different  character  might  ha\-e 
struck  at  th«  vital  intcreflts  of  manufactured.  80  that  the  gen- 
eral propriety  of  this  clause  is  established  by  its  intrinsic  politi- 
cal wisdom,  as  well  as  by  its  tendency  to  quiet  alanns  and 
ftuppress-  di  scon  tents. ' 

§  95*.  Two  practical  qnestions  of  great  importance  have  arisen 
upon  the  construction  of  this  clause,  either  standing  alone,  or  in 
connertinn  with  other  clauses  and  incidental  powers  given  by  the 
Constitution.  One  is,  whether  the  government  has  a  right  to 
lay  t.ix«i  for  any  other  purpose  than  to  raise  revenue,  however 
mueh  that  purpose  may  be  for  the  common  defenet  or  |j^-ncral 
welfare.  Tlie  other  is,  whether  the  money,  when  raised,  can  be 
appropriated  to  any  other  purposes  than  such  as  are  pointed  out 
in  the  other  euumemted  powers  of  Congress.  The  former  in- 
Tdrcs  the  qucfltioo  whether  Congress  can  lay  taxes  to  protect 
and  ettcourage  domcKtic  manufactures;  tlie  latter,  whether  Con- 
gTMs  can  Hpprupriutc  money  to  internal  improvements.  Bach  of 
these  questions  has  given  rise  to  much  animated  controversy; 
each  has  txH-n  nffirmod  and  denied,  with  grent  pertinacity,  zeal, 
and  elo«|uent  reasoning;  each  has  beiwme  prominoni  in  the  stnig- 
ples  of  party;  and  defeat  in  each  has  not  hitherto  silenced  oppo- 
sition, nr  given  absolute  security  to  victory.  Tlie  contest  is  often 
renewed ;  and  the  attack  and  <lofence  maintained  with  equal  ardor. 
1  Kn  4  EUiot'i  Dalx  3SS,  33«. 


708 


coNsnroTioK  op  tsb  tJNrreo  states.        [book  nr. 


la  didcussiug  this  Bubject^  we  (urc  treading  upon  the  uhes  of  yet 
anoxtiuguislied  fires, — itwedimtu  ptr  i/fnn  mipponitaa  eituri 
ihhuo;  —  and  while  t3)e  nature  of  these  Commentariea  rnquires 
that  the  doctrine  should  be  freely  examined,  aa  maintained  on 
either  side,  the  result  u-il)  he  left  to  the  learned  reader,  without 
a  desire  to  influence  his  judgment,  or  dogmatical)/  to  onnaimca 
that  belonj^ng  to  the  commentator. 

§  itod.  First,  then,  as  to  the  question  whether  Coogrcas  eaa 
lay  taxes,  excef>t  for  tiie  pnrpnses  of  revenue.  TfaiM  gubjcot  haa 
been  already  touched,  in  considering  what  is  the  tme  reudinj^and 
interpretation  of  the  claiise  conferring  the  power  to  lay  taxut. 
If  the  reading  and  interpretation  there  insisted  on  be  eorrt'Ctf  it 
furnishes  additional  means  to  resolve  the  question  now  under 
cons  i  do  rat  ion. 

§  E>60.  The  argument  against  the  eonatitationat  authority  la 
understood  to  be  maintained  on  tlie  follouing  grounda,  which, 
though  applied  to  the  protection  of  manufaeturea,  are  cfpially 
applicable  to  all  other  caaee,  where  rerenue  ia  not  tho  ottjecl. 
The  (ivni^Tal  govommpnt  is  one  of  specific  poweri,  and  It  oan 
rtghiriitly  exercise  only  the  powers  expressly  granted,  and  thoM 
which  may  bo  "necessary  and  proper"  to  carry  them  into  effect, 
all  others  being  reserved  expressly  to  the  States  or  to  the  people^ 
It  results,  oecesaarily,  that  those  who  claim  to  exercise  a  power 
under  th«  Constitntion  are  boond  to  show  thai  it  is  expressly 
granted,  or  that  it  is  "necessary  and  pro|)cr,"  as  a  meaua  to  ex- 
ecute some  o(  the  granted  powers.  No  such  proof  has  hoed 
offered  in  regard  to  the  protection  of  manufactures. 

§  {H>1.  It  is  true  that  the  eighth  section  of  tho  firet  article  of 
the  Constitution  authorises  Congress  to  lay  and  cullect  an  impost 
duty ;  hut  it  is  granted,  as  a  tax -power,  (or  Uie  solo  ptirpoM  n( 
revenue.  — a  power  In  its  nature  esst^'ntialiy  different  front  that 
of  imposing  protective  or  proliibibory  duties.  The  two  are  in* 
compatible;  for  the  proiiibitory  system  must  end  in  destroying 
the  revenue  from  imports.  It  has  l>een  said  that  the  system  is  a 
violation  of  the  spirit,  and  not  of  the  letter,  nf  the  Constitiititm. 
The  distinction  is  not  matnriaL  The  Constitution  may  bo  an 
grossly  violated  by  acting  againat  ita  meaning  as  against  its  let- 
ter Tlic  ConsTilution  grants  to  Congress  the  power  of  imposSng 
a  duty  on  imports  for  revenue,  which  power  is  abu»>;d  by  bv'mg 
converted  into  an  instnimcnt  for  rearing  up  the  industry  ol  una 


CH.  XIV.] 


f-OWEBS  OF  CONQBBBB  —  TAXS. 


709 


section  of  tbe  eonntrr  on  the  rvina  of  another,  llie  rioUtion, 
tlteo,  coDBisU  ID  twiQ)^  a  power  K^auted  for  one  object  to  advance 
ouuthcr,  and  ihat  by  u  suurtficc  of  the  original  object  It  is,  in 
a  word,  a  vMation  of  pcrvemioH,  thn  mutit  dangeroiui  of  all,  be* 
coiue  Uie  mont  iiuidioiu  and  difTicnlt  to  reoiitU  8iicb  is  tlic  rea* 
Boniiig  emuMtinK  from  high  l(%ixluti\-u  authority.'  On  auotlier 
interesting  occn«iou,  the  argument  has  been  put  in  the  follow- 
Eing  ahai)>e.  It  ia  admitted  that  Congress  hu  |>uwor  to  lay  and 
collect  Hucb  duties  as  they  may  deem  ncceeBory  for  the  purposes 
of  revenue,  and  mthin  tfuM  limita  so  to  arrange  tlii»o  dutira, 
as  iHeidtntalltf,  and  to  that  extent  to  give  protevliuu  to  the  maa- 
ofacturer.  liut  the  right  ia  denied  to  convert  what  ia  here 
denominated  the  incidental  into  tlio  principal  power,  and.  tran- 
scending the  limits  of  revenue,  to  im)M;ac  an  additiouul  duty 
substantially  and  exclusively  for  the  purpose  of  affording  that 
protection.  Congress  may  countervail  the  regulations  of  a  for- 
eign power,  which  may  be  hostile  to  our  commoroe;  hut  their 
anthority  is  denied  permanently  to  prohibit  all  importation,  for 
the  purpose  of  securing  the  home  market  exclusively  to  the 
dotnestio  nuuiufaoturer,  thereby  destroying  the  commerce  they 
were  entrusted  to  regulate,  and  fostering  an  interest  with  which 
they  have  noeonstitulionnl  power  to  interfere.  To  do  so,  there- 
fore., is  a  palpable  ahuso  of  the  taxing  power,  which  was  con- 
ferred for  the  purpose  of  revenne;  and  if  it  is  referred  to  the 
authority  to  regulate  commerce,  it  is  as  obvimui  u  [wrversioa  of 
that  power,  since  it  may  bo  extended  to  un  utter  annihilation  of 
the  objw'ts  which  it  was  intended  to  protect,* 

{  962.  In  furUierance  of  this  reasoning,  it  has  been  admitted 
that,  under  the  power  to  regulate  commorcc,  Congraui  is  not 
limited  to  the  imposition  of  duties  upon  imports  for  tha  sole  pur- 
pose of  revenue.  It  may  impose  retaliatory  dntlcs  on  foreign 
powers;  but  these  retaliatory  duties  must  bo  iupoeed  for  the 


■  8c«l)wazparftioaHd)icDMI,tvponedb]r*<«iitinitlMof  UMhoaMoTnpnMiiU- 
tira  gf  Stnith  Cuoliat,  on  19lh  of  Dmrober,  IStt,  (DiI  ailojitol ;  tlia  ilnft  of  wliirfa 
hu  bnta  Ulrlhouil  to  Ur.  Vito-Pmtdmt  CkllMiitit.  I  h>T«  foUow«d.  u  nrariy  u 
pnrlimbb^  llw  vnr  wiird*  of  ik*  r^mt. 

*  Thit  i*  citimctal  trom  llw  aililn**  of  Ibo  FrM-1WI«  C^nnlloii,  at  PUUiUlpbk. 
hi  (ktubnT,  ISSl,  pfL  39,  Si,  oltribaud  to  Uio  pn  of  Mr.  Atlon>f7-d«M4«l  tkrrim. 
Ut.  Senator  Uifito,  ia  hi*  ipecch  Mi  Jintwrj,  ISIS,  Mp  LhM  he  don  not  k»** 
wh>n>  i)i«  oatutitntiontl  ot^tioM  to  tbe  tuilf  ijntam  an  bottcr  Nmued  np  Uuw  b 
UiU  addiM^  r^  H,  S3. 


710 


coNsnrcnoK  of  the  i'Sitkd  staibs.         [book  nt. 


regulation  of  commerce,  not  for  (he  oncmiragcracnt  of  nianiifncC 
ures.  The  power  to  reflate  manufactures  nut  having  been  con- 
fidt.<4l  to  Congrcfts,  they  have  no  more  riglit  to  act  u)>on  it  than 
they  have  Iw  intvrfuru  with  the  HVHtvmii  uf  education,  the  {loor- 
laws,  or  the  roud  laws  of  the  States.  Congress  is  empowered  to 
lay  tiixea  for  revenue,  it  is  true;  but  there  ia  no  power  to  encour- 
age, protect,  or  mcddlo  willi  manufactures.' 

§  9163.  It  ia  uniioocssary  to  consider  the  arguntent  at  present, 
so  for  as  it  bears  upon  the  constitutional  authority'  of  Ctniffreas 
to  protect  or  encourage  manufactures;  because  that  subject  will 
more  properly  come  under  re%iew,  in  all  its  bearings,  under  so- 
other head,  namely,  tlie  fiower  to  regulate  commerce,  to  which  tt 
is  nearly  allied,  and  from  which  it  is  more  usually  derired. 
Stripping  the  argument,  therefore,  of  this  adventitious  circum- 
stance, it  resolves  it»elf  into  this  statement  The  power  to  la; 
taxes  is  a  power  escliisively  given  to  raise  revenue,  and  it  can 
constitutionally  be  applied  to  no  other  purpiiaes.  The  applica- 
tion for  other  purposes  ia  an  abuse  of  the  power;  Rnd,  in  fact, 
however  it  may  be  in  fonn  disguised,  it  is  a  premeditated  usnr- 
pnlion  of  authority.  WTienever  money  or  revenue  is  wanted,  for 
constitutional  purposes,  tlie  power  to  lay  taxes  may  be  applied 
to  obtain  it.  When  money  or  revenue  is  not  so  wanted,  it  ia  not 
a  profter  mcanH  for  any  constitutional  end. 

§  96-L  The  argument  in  favor  of  the  constitutional  antliority 
is  grounded  upon  the  tenns  and  the  intent  of  tlie  Oonslitmien. 
It  seeks  for  the  true  meaning  and  objects  of  the  power,  aceordit^ 
to  the  obvious  sense  of  the  language  and  the  nahtre  nf  the  gov- 
ernment proposed  to  Iw  established  by  that  instrument  It  relies 
upon  no  strained  construction  of  words;  but  demands  a  fair  and 
reasooabtc  iuterpretatiou  of  tlic  clause,  ^(t^out  any  restrictions 
not  naturnlly  implied  in  it  or  in  the  context.  It  will  not  do  to 
awiime  that  the  clause  was  intended  solely  for  the  purposett  o( 
raising  revenue,  and  then  ar^e  that,  being  so,  the  power  eanoot 
l>e  constitutional ly  applied  to  any  other  |Rir|)iiees.  Tlie  very 
point  in  controversy  is,  whether  it  ia  reslricted  to  puriMsi-s  of 
re\-enae.  Iliat  must  lie  proved,  and  cannot  be  assumed,  as  tJte 
basis  of  reasoning. 

§  96.5.  The  language  of  the  Constitution  is,  "  Congress  dull 
have  power  to  lay  and  collect  taxes,  duties,  imposts,  anil  «x- 
)  C«L  Dnjioo'iOmtkn,  uCti«riMtaB.«tlio(Jdy.  IBSI.  |<p.ia,lt. 


CB.  XIV.'] 


C0K0RB8S  —  TAXES. 


7U 


ciecs."  If  the  clause  had  utoppcd  here,  and  remained  in  this  &!>• 
soluttt  forni  (as  it  was,  in  fact,  when  reported  in  the  first  draft 
in  t]ie  convention),  there  could  uot  have  Immui  tlie  nlighteflt  doubt 
on  the  Kuhject.  The  aliaolutc  power  to  lay  taxpn  luclutiea  Uie 
power  in  ev«rj  form  tn  which  it  may  be  osim),  and  for  every  p«r- 
poBie  to  which  the  Icgialaturo  may  chooei'  to  apply  it  This  re* 
suits  fn>m  tho  rcry  nature  of  Much  an  unrcHtricted  )>ower.  A 
fortiori  it  might  bt'  applied  by  Con);n-s8  to  purposes  for  vliich 
uutioQB  have  been  accustomiNl  to  apply  it.  Now,  nothing  is  more 
clear,  from  the  history  of  commercial  notions,  than  tho  fact  that 
the  taxiui^  power  is  often,  very  often,  upplicd  for  other  purpoaos 
than  rercnuo.  It'  18  often  applied  as  a  rc^ilatjou  of  commerce. 
It  is  uftun  applied  as  a  virtual  prohibition  upon  the  importation 
of  purtk'ulur  articles  for  the  oniMurngvmi-ut  and  protection  of 
domestic  products  and  indust  ry ;  for  the  support  of  aj^riculture, 
commerce,  and  manufacturi>«;i  (or  n^talialiou  upon  forei^  mon- 
ojiolies  and  injurioits  reatriotioiis;'  for  niero  purpue«K  of  state 
policy  and  domcAtic  economy;  oomelimes  to  banish  a  noxious 
article  of  couKimiption;  Hometimeo  as  a  liotmty  upon  an  infant 
uumufactura  or  agricultural  product;  aonietimes  as  a  temporary 
restraint  of  trade;  sometimes  as  a  snpprossion  of  particular  cm- 
pluymenis;  sometimes  as  a  prorogiitive  [tower  to  destroy  compe- 
tition, and  secure  a  monopoly  to  the  government!* 

§  QGd.  If,  (hen,  tlie  power  to  lay  taxes,  being  general,  may 
embrace,  and  in  the  practice  of  nations  does  eml>race,  all  these 
objects,  either  separately  or  in  combination,  upon  what  founda- 
tion does  the  argument  rest  which  assumen  one  object  only,  to  the 
exclusion  of  ail  the  rest?  which  innistB,  in  effect,  that  becaoae 
revenue  may  i>e  one  ottject,  therefore  it  ia  the  sole  object  of  the 
power?  which  aasumefl  ita  own  construction  to  bo  correct,  he- 
cause  it  suits  ita  own  theory,  and  denii-a  the  same  right  to  others 
entertaining  a  different  theory?  If  tho  power  is  general  in  ita 
terms,  is  it  not  an  abuse  of  all  fair  reusoniiKi  to  insist  that  it  is 
particular  ?  tu  desert  the  import  of  tlw  language,  and  to  substi- 
tute otlicr  and  different  languuf^  ?  Is  this  allowable  in  regard 
to  any  instrument?    Is  it  allowable  in  on  especial  manner,  as 


I  Hamilloo')  Kepurl  ob  UADnhctatM,  in  1791> 

*  3«!  Mr.  JolTcnan'*  R*|art  on  CanimBtCM]  Rcrtrktimi,  la  17P3 :  i  Hanbair*  Ufa 
of  WukuiRlon,  th.  7,  111   tSl  to  487 :  1  VaJt'i  Suu  t^r^  tH,  434. 
■  8e*  8Mith'>  WoUli  at  ttuians  B.  G,  cb.  2,  art.  I. 


712 


COKHnrCTION   OP  THE  OKITBD  STATES.  [bOOK  IH. 


to  constitutions  of  gorernmont,  growiag  ont  of  tbe  rights,  duties, 
and  exigencies  of  nations,  and  looking  to  an  infinite  variety  of 
circunutancca,  which  vaay  require  very  different  applications  of 
a  given  power? 

§  967.  In  the  next  place,  then,  ia  the  power  to  lay  taxea,  girea 
by  the  Coiiiititiition,  a  geoeral  power,  or  is  it  a  limited  power? 
If  a  limitt.-d  power,  to  what  objects  in  it  limiti^l  by  the  terms  of 
the  Constitution? 

§  INK-  Upon  this  subject,  as  has  been  already  stated,  three 
different  opinions  ap|>ear  to  have  been  bt-ld  by  staloaineu  uf  no 
common  Bagaoi^  and  ability.  The  first  is,  that  the  power  is 
unlimited;  and  that  the  sulncquent  clause,  **to  pay  the  debts 
and  provide  for  the  common  defence  and  general  welfare,"  is  a 
substantive,  independent  power.  In  the  view  of  those  who  main- 
tain this  opinion,  the  power,  being  general,  cannot  witJi  any  oon- 
Btstcncy  be  restrained  to  purposes  of  rcrenuCb 

§  969.  The  nest  is,  that  the  power  is  restrained  by  the  sabse- 
qucnt  elauxe,  so  that  it  is  a  power  to  lay  taxes  in  order  to  pay 
debts,  and  to  provide  for  the  oomuion  defeuce  and  general  wel- 
fare. Is  raising  revenue  the  only  proper  mode  tu  provide  fur  the 
common  defence  and  general  welfare?  May  not  the  general 
welfare,  in  the  jtidgineut  of  Congress,  be,  in  given  circnm- 
Btances,  os  well  provided  for,  nay,  better  provided  for,  by  prohib* 
itory  duties,  or  by  encouragements  to'  domestic  industry  of  all 
sorts?  If  a  tax  of  one  sort,  as  on  tonnage,  or  fon-iirn  vessels, 
will  aid  commerce,  and  a  tax  on  foreign  raw  matcriHts  will  did 
agriculture,  and  a  tax  on  Imported  fiabrics  will  aid  d^unestio 
mannfactures,  and  so  promote  tlio  genera]  welhre,  mar  tbey  not 
be  all  constitutionally  united  by  Congress  to  a  law  for  this  pnr> 
pose?  If  Congress  can  unite  them  all,  may  Ibsy  not  sustain 
tiwm  severally  in  neparate  laws?  Is  a  tax  to  aid  mautifuctures, 
or  agriculture,  or  commerc«,  necessarily,  or  cveji  nittnmlly, 
■gainst  the  general  welfare  or  tbe  common  defenee  ?  Who  is  to 
decide  upon  such  a  point  ?  Congress,  to  whom  tlie  authority  is 
given  to  exercise  the  power  ?  Or  any  other  b«>dy,  ijtate  or  na- 
tional, which  may  ehoose  to  assume  it  ? 

§  970.  Besides,  if  a  particular  act  of  CuigreBS,  not  for  reve- 
nue, should  be  deemed  an  exctss  of  the  powers,  docs  it  follow 
(hat  all  other  acts  are  so?  If  the  commun  defence  or  general 
welfore  can  be  promoted  by  laying  taxes  in  any  other  manner 


OB.  XIV.] 


POWERS  OP  coKGBEsa — uxca 


718 


than  for  rercnne,  who  is  nt  liberty  to  mj*  tiut  Conf^rcse  cunnot 
I  eonstitutinnaltjr  exertiae  the  pow«r  for  «uoh  a  )>urpoti«  ?  No  one 
[liaa  a  right  to  any  that  tli«  coninioa  dofcucc  aud  gouural  welfare 
[can  DOrer  be  promotetl  by  laying  taxes,  exocpt  (or  r«\-unuo.  No 
ae  ha»  erer  yet  b4>en  bold  enough  to  amert  audi  o  propoditton. 
Different  men  have  entertaiii«d  opposite  opintona  on  subjcctd  of 
this  nature.  It  is  a  matter  of  tlieory  and  speculation,  of  politi- 
cal economy  an<l  national  policy,  and  not  a  niattvr  of  power.  It 
may  he  wise  or  unwise  to  lay  taxes,  except  (or  rcrenno ;  but  the 
vindnm  or  inexpediency  of  a  measure  is  no  test  of  its  constitu- 
tionality. Those,  therefore,  who  hold  the  opinion  above  stated 
must  imavoidably  maintain,  tliat  the  power  to  lay  taxi's  is  not 
confined  to  revenue,  hut  extends  to  all  cases  wheru  it  in  proper 
to  be  used  for  the  common  defence  and  gcncnil  wi-lfare.*  One 
of  the  most  effectnal  means  of  defence  against  the  injuriwts 
egulations  and  policy  of  foreign  nations,  and  which  is  inotit 
lonly  resortwl  to,  is  to  apply  the  power  of  taxation  to  the 
products  and  manufactures  of  foreign  nations  by  way  of  rctalia- 
btion;  and,  short  of  war,  this  is  found  to  lie  practically  that 
Vhich  is  felt  most  extensively,  and  produces  the  most  immediate 
redress.  How,  then,  can  it  be  imagined  for  a  moment,  that  this 
not  contemplated  by  the  framers  of  the  Couslilutlun  as  a 
Hmeans  to  provide  for  the  common  defence  and  gt^iicral  welfare? 
§  971.  The  third  opinion  is,  as  has  been  already  stated,  that 
the  power  in  restricted  to  such  sjM'cific  objects  as  are  contained 
In  the  other  enumerated  powers.  Now,  if  revenue  be  not  the  lole 
and  txeiutire-  means  of  carrj'ing  into  effect  all  these  enumerated 
powers,  the  advocates  of  this  doctrine  must  maintain,  with  tbow 
of  the  ROcond  opinion,  that  the  |)owcr  is  not  limited  to  purposes 
of  revenue.  No  man  will  pretend  to  say  that  all  tliosc  enumer- 
ated powers  have  no  other  objects,  or  means  to  effectuate  tliem, 
than  revenue.  Bevenue  may  be  one  mode;  but  it  is  not  Uic 
sole  moAv,  Take  the  power  to  ^  regulate  commerce."  Is  it  not 
clear,  from  the  whole  history  of  nations,  that  laying  taxes  is  one 
of  the  moat  usual  modes  of  regulating  commerce  ?  Is  it  not,  in 
muny  ciuca,  tliv  W-ni  means  of  preventing  foreign  monopolies  and 
mischievous  oommercinl  restrictions?  In  such  cases,  then,  the 
power  to  lay  taxes  is  confessedly  not  for  revenue.     If  so,  is  not 

■  See  llflBiaioM'i  Ripott  on  HMUtktam  in  17*1 ;   1  UanUlM**  W«tfc(  (tdjt 
ISIO),  Tia :  3  ZlWi  Debate^  Mi, 


714 


ooNSTinmojj  ov  the  DmrsD  otateb.        [booe  m. 


tJto  argtuncnt  irresisiblo^  that  it  is  Dot  limited  U>  purposes  of 
rercaue?  Tako  another  power,  tlie  power  to  coin  money  and 
regulate  ita  value,  and  that  of  foreign  coin;  might  iiiit  n  tax  be 
laid  on  certain  foreign  coin  for  the  purpose  of  carrying  this  into 
effect  by  8U|]prM8iiig  the  circulation  of  such  coin,  or  regulating 
its  raluc  y  Take  the  power  to  promote  the  progrcea  of  Bcience 
and  oaefnl  arts;  might  not  a  tax  Ix)  laid  on  foreigners,  and  for- 
eign iDventious,  in  aid  of  this  jwwer,  ao  aa  to  suppresa  foreign 
competition,  or  encourage  doiiiP»tic  scionco  and  arts  ?  Take  an- 
other power,  vital  in  the  estimation  of  many  statcemun  to  the 
eecurity  of  a  republic, — the  power  to  provide  for  organizing, 
arming,  and  disciplining  the  militia;  may  nut  a  tax  bo  laid  on 
foreign  arms,  to  encourage  the  domcBtic  manuXacIuru  td  arms, 
BO  afl  to  enhance  our  security,  and  give  uniformity  to  our  orga- 
nization nod  diHtiipline  ?  Take  the  power  to  declare  war  and  its 
auxiliary  powers;  may  not  Congress,  for  the  very  object  of  pro- 
viding for  the  effectual  exercise  of  tbeae  powers,  and  securing  a 
permanent  domestic  manufacture  and  supply  of  powder,  equip- 
nii-nt8,  and  otjicr  warlike  apparatus,  impose  a  prohibitory  duty 
upon  foreign  articles  of  the  same  nature  ?  If  Congrcsa  may,  in 
any  or  ail  of  these  cases,  lay  taxes,  then,  oa  revenue  constitutes 
upon  the  very  basis  of  the  reasoning  no  object  of  tlie  taxes,  ift  it 
not  clear  that  tlio  enumerated  powers  require  the  power  to  lay 
tttxca  to  bo  more  extensively  construed  than  for  purposes  of  rere- 
nuc  >  It  would  be  no  answer  to  say  that  the  )>ower  of  taxation, 
though  in  its  natui-c  only  a  power  to  raise  revenue,  may  lie  re- 
florbed  to,  as  an  implied  power  to  carry  into  effect  tbrae  enumer- 
ated powers  in  any  effcctuHl  inunucr.  That  would  be  to  contend, 
that  an  txprrst  power  to  lay  \&\v^  is  not  coextensive  with  an  I'm- 
plUd  power  to  lay  taxes;  that  wlicn  the  express  power  la  givim, 
it  means  a  power  to  raise  revenue  only;  but  when  it  is  implied, 
it  no  longer  has  any  regard  to  this  object.  How,  then,  is  a  caae 
to  bo  dealt  with,  of  a  mixed  nature,  where  revenue  is  mixed  up 
with  other  objects  in  the  framing  of  the  law  ¥ 

§  972.  If,  then,  tlio  power  to  lay  taxes  were  admirteil  to  be 
restricted  to  caacs  within  the  enumerated  powers,  still  the  advo> 
cates  of  that  doctrine  are  comftelled  to  admit  that  the  power 
must  be  construed  as  not  conlmed  to  revenue,  but  as  cxtHnding 
to  all  other  objects  within  the  scope  of  those  powers.  Where  Uie 
power  is  expressly  given,  we  arc  not  at  liberty  to  say  that  it 


CH.  SIV.] 


POWEHa  OF  OOKORESa  —  TAXBB. 


ns 


U  to  be  implied.  Being  given,  it  mn)-  certainly  bfl  resorted  to 
u  a  mcann  to  efTectuikte  nil  the  powers  to  which  it  i»  appropriate ; 
not  becaiioe  it  is  to  be  implied  in  the  grnnt  of  those  povron,  but 
because  it  is  expressly  ({ranted,  as  a  aiibsuntive  power,  and  tauy 
be  lued,  of  tiuurao,  aa  an  auxiliary  to  them.* 

§  073.  So  that,  whichever  oonatruction  of  the  power  to  lay 
taxc3  ta  adopted,  the  same  conclusioD  is  sutttaincd,  that  tlie 
power  to  lay  taxes  ia  not  hy  the  Oonatitntion  confined  to  pur* 
poei<8  of  revenue.  In  ]M>int  of  fact,  il  has  never  been  limited  to 
such  purposes  by  Congress;  and  all  the  great  functionaries  of 
the  government  have  constantly  maintained  the  doctrine  that  it 
was  not  constitutionally  so  limited.* (d) 

§  974.  Sucb  is  a  general  summary  of  tite  reaaoning  on  each 
aide,  so  far  as  it  refers  to  the  {wwer  of  laying  taxes.  It  will  be 
hereafter  resumed  in  cxumining  thv  nature  and  extent  of  the 
power  to  re^Iikte  cmiimorco.  %. 

§  975.  Tltc  uHkt  i]uc«tion  is,  wlicther  Congress  has  any  jwwer 
to  appropriate  money  roitied  hy  taxatiou,  or  otherwise,  for  any 
other  puriMMiM  than  those  pointed  out  in  tbe  enumerated  powers 
which  follow  tbe  clause  respecting  taxation.  It  is  said,  **  raised 
by  taxation  or  otherwise;'*  for  there  may  l»c,  and  in  fact  arei, 
other  sources  of  revenue,  hy  whicli  money  may  and  docs  come 
into  the  treasury  of  t)ic  United  States,  otherwise  Uinn  by  taxa- 
tion; ss,  for  instance,  by  finc«,  penalties,  and  forfeitures;  by 
sales  of  the  ptiblic  lands,  and  interests  and  dividends  on  Imnk- 
stocks:  by  captures  and  pnxc  in  times  of  war;  and  by  other  in* 
cidcntal  profits  and  emoluments  growing  out  of  gnrernmental 
transactions  and  prerogatives.  Bnt  for  all  tlie  common  pur> 
poses  of  argument,  tlto  (juestion  may  be  treated  as  one  growing 
out  of  levies  by  taxation. 

§  976.  The  reasoning  upon  which  the  opinion  adverse  to  the 
authority  of  Congress  to  make  appropriations  not  within  tbe 
•cope  of  tJie  enumerated  powers  is  maintained,  has  been  already, 

>  Sm  Hi.  HKdbcm-i  Lttt«t  U  Mr.  Ckbtll.  IBlb  Sqit.  tSSS. 

*  Tbr  |in«cnt  OomMMtuita  <mv  vritteo  belot*  tbe  appMniBeo  of  Mr.  Jolin  Q. 
AJdwit'*  Irtlsr  to  Ut,  Sfcdtet  BUrnuoit,  b  ttSt.  Tlut  btUr  (u  luu  ham  tltatiy 
iiitiiKitiol)  tonlaiii*  *  vttr  aliili  «n4  (i1«bor*l«  Tlndicattoa  of  lb*  |Mv*r  to  Uv  Uxn,  u 
extrnJiME  to  all  puipoan  at  Uii  common  ilrfmo*  Mill  muni  woiruw.  It  in  ihr  fiilint 
rM{K>iiM  to  ib«  ldt«r  of  Ur.  U«liaea  to  Mr-  S|n1ur  Stevnuoa,  STth  Kov.  \SSIt,  whkli 
luu  *Tcr  yet  bota  giveo. 

(ay  S««j)«(,|1D;3. 


71« 


CONSmDtlON  OP  THB  UKtTEO)  BTATEA.  [BOOK  III. 


in  a  great  meaaurc,  stutod  Id  the  preceding  exMnioation  of  the 
grammaticu)  comttruction  of  the  clause  giving  the  power  to  l»j 
taxea.'  The  controvei-sv  it  virtually  at  on  end  if  it  jfi  once  ad- 
mitted that  t\iv  words  "to  pnivide  for  tho  coiuiuou  defence  and 
general  volfaro  "  are  a  part  and  qualification  of  the  powor  to  lajr 
taxes;  for  then  Congress  has  certainlr  a  right  to  a{>j>rupriate 
moncj'  to  any  purjioaea,  or  in  any  inunncr,  conducive  to  tboM 
ends.  The  whole  stress  of  the  argument  is,  tlierefore,  to  estah- 
tiflh  that  the  words  "to  provide  for  the  oommon  dcf^nee  and 
general  welfare"  do  not  form  an  independent  power,  nor  anr 
<jualirication  of  the  power  to  lay  taxes.  And  the  argumoat  iis 
that  they  are  "mere  general  terms,  explained  and  litait).-d  by  the 
subjoined  specilications. "  It  is  attempted  to  bo  fortiQvd,  as  baa 
been  already  seen,  by  a  recurrence  to  tho  history  of  tJie  confed- 
eration;  to  the  successive  reports  and  alterations  of  the  tax 
clause  in  the  convention ;  to  the  iuconronienccs  uf  such  a  large 
construction;  and  to  the  auppuscd  impossibility  that  a  power  to 
make  such  appropriations  for  the  common  defence  and  general 
welfare  should  not  have  bL<cn,  at  the  adoption  of  the  Constitu- 
tion, a  subject  of  groat  alarm  and  jeiLlousy,  and,  as  such,  resisted 
in  and  out  of  tho  Stato  conventions.* 


>  Sn  Vlr)[ini>  Rnolatian),  7Lh  Jkn.  1S00;  Mr.  U>diB»i  Letter  to  Mr  Spaakn 
StavniWD,  2Tlli  Nov.  1S30.     Hev  n1k>  i  EllJM'i  D«b.  2S«,  331 :  1  Elliot's  Deb.  314. 

*  T\u  tollowinc  Kuiumnry,  uLcn  from  fraiiltat  MaJiran'*  VMt  llEtM4[o  im  tlia 
Bank  80DU1  Bill  for  tutonul  linptoTenmnu,  H  Uueh,  1817  {*  KIhat'»  DvtMta*,  S8II, 
Wl  j,  eoiiUin*  a  vrry  clear  ttaltnicnl  a1  t)i«  rtMoiiIU)^     "Tonlrr  Uh  poavT  is  qoM* 
tt«n  "  Itbal  U,  of  «oii«truclliiK  tonJi,  i^iuU,  luJ  olhsr  btcmal  tnpr«v*iu*aU|  "  to 
th«  clxnte  lo  providu  Tor  Ui«  coinmoa  dtrrmoi  uul  gcncnl  wdbrv.  ironU,"  mr*  Iw, 
"ba  conlniy  lo  tho  cstnblUIiiHl  rules  of  iaterftetaUoii  u  tsadulrix  ibn  kjircU]  and 
OM«fnl  oiitiMntUin  oi  power*,  which  lollow  iW  <Juim,  nugatory  uiil  iin|irBiM'.    Sock 
a  viow  of  tho  Coiutitntion  would  hiv*  tk*  othct  of  gi>^i*g  U>  Onngrw  •  gt*etal  ftimtr 
of  |cgi*l«Ilon,  in*U»A  of  iho  •Icfinud  nud  Ibnitdt  oo^  bitbrrU  nadoalAMl  l«  bdiws  to 
thfin  ;  1I14  tntna  '  tb«  MDiMon  ■lrfrar»  and  general  wtjfore  *  aabridnit  nvnr;  <>tti«ct 
and  nul  within  the  purview  of  « IcgiilattTo  tmM.     It  w««!il  ban  Ott  aB«l  of  (Bl^ectiag 
bMh  tha  (onstitntion  and  Uwa  of  Uw  arrfnl  SUtM,  i»  all  caMi  not  tfiniiawnj  0i> 
enpud,  lo  be  mpenodod  by  l)>'  Uw«  of  Caognaa ;  it  bring  exprwly  iltclated,  tbM  lli* 
CDnatitadaa  of  tha  0Bii«l  SUtri.  anil  (b«  Ian  rode  in  pntnano*  lh«twr.  alwtl  W 
IhoMpramoUwof  IIiolaa<),  and  the  jn<lxnof«Tcr7  State  )h»llt)r  1 
thing  in  the  oonalitiilian  or  Ins  of  anj  8taU  to  tha  conlnur  aoi ' 
a  riew  ti  tha  Conatitntiaii,  flnalJT,  wouM  han>  lli«  aiTact  of  1  -. 
atUAorilyi^tht  thileiSIMMfiromatparliripirtimiafilardiiiglM' 
Ugtitatnt-pamntf^pn^raXaitdSUtUtoairKvuntM;  iaaannchai  ij  lo 

tliog*nar»l  wtlfan,  being  qwiaUona  of  ^MtjmA  Bx^imef.nr  _.  ».'  ja- 

dklal  AOgniaiDce  aod  deciaioii.    A  rartrictioin  of  lite  povu  *  to  provide  tvt  tb*  1 


ca.  XI 7.] 


POWEBS  OF  COSOBSS — Tunv. 


nt 


§  VJ7,  Tbfl  argument  in  faror  of  fhe  power  in  dortro^.  In  ^Im 
firat  pUcc,  from  the  langung<e  of  the  clauAC  conferring  the  powr 
{which,  it  is  admitted,  in  its  literal  terms,  covers  it);'  secondlv, 
from  the  nuturu  of  the  power,  which  renders  it  in  the  highest 
dfgroe  expedient,  if  not  indiBpen&abli>,  for  tliu  du«  o{)«rulionB  of 
the  national  government;  thirdly,  from  the  early,  constant,  and 
decided  niaintenaDce  of  it  by  the  f;ovcmini.'nt  itnd  its  functiona- 
ries, aa  well  oh  by  many  of  our  ablest  Btati;smcn,  from  the  very 
commencement  of  the  Constitation.  So,  that  it  hna  the  language 
and  intent  of  the  text,  and  the  pmctico  of  tlie  government,  to 
sustain  it  against  an  artificial  doctrinu  set  up  on  the  other  side. 

§  978.  The  argument  derived  from  the  words  and  intent  has 
been  so  fully  considerfd  alrvsdy  that  it  cannot  need  rcfR'tition. 
It  is  Bummtul  up  witl)  great  force  in  the  report  of  tlie  Secretory  • 
of  tJie  Treasury'  on  manufactures,  in  1791.  "The  national 
legislature,"  says  he,  "has  exprcsa  authority  to  lay  and  collect 
tajLQs,  duties,  imposts,  and  exciaes;  to  pay  the  debts  and  provide 
for  tiie  common  defence  and  general  welfare,  with  no  other  ijual* 
ideations  than  that  all  duties,  imposts,  and  cxcisea  shall  be  uni« 
form  throughout  the  United  States;  that  no  capitation  or  other 
dire<^  tax  shall  lie  laid,  unless  in  pro]>ortion  to  nunibere  ascer^ 
tained  by  a  census,  or  enumeration  taken  on  the  principle  pre* 
■cribed  in  the  Constitution ;  and  that  no  tax  or  duty  shall  lie  laid 
on  articles  vx{>orli'd  from  any  Slate.  These  tliree  qualificatiou 
csGvptuI,  the  power  to  raise  money  is  plenary  and  indclimte. 
And  the  objwts  to  which  it  may  be  approiiriatt>d  arc  no  Iras  com- 
prehensive than  (he  payment  of  tlie  public  debts  and  tlie  provid- 
ing for  the  common  defence  and  general  welfare.  The  terms 
*  general  welfare'  were  doubtless  intended  to  signify  more  than 
was  expro«eed  or  imported  in  tlioso  which  preceded;  otherviBe, 
numerous  exigencies,  incident  to  the  affairs  of  the  nation,  would 


dafmc*  and  gmunl  wslbn '  to  cam  wUdi  u«  t»  bt  pfwriiM  far  by  the  axptiidiRin 
of  ammj  woqM  Mill  Imv*  withta  Dm  k^datli«  povcr  <4  Omgrm  «U  tb«  gn»t  uid 
iNwl  inpoitant  niMMtrM  of  gortrniMnt,  tnoMy  bttiiK  tli*  onUaMy  ud  noecauy 
OMMH  of  auryiati  Oum  iota  «iM«tion."  It  w!|]  be  prroeirfl  *l  oncfv  UmI  thit  b  tb* 
(■ma  tBtDiilng  fatfated  on  hf  Ur.  HaiUiMi  in  dm  VIi^w  BefMft  unI  RMotutku  of 
Tttijui.  ISDO:  aadiahii  Lkit  to  Mr.  ap—to- 8l»waiiii>,  «l  Wth  Sot.  1880 1  Mdbr 
the  mmtgtBtiamm  la  tb*  DtUte  on  (be  OedUwi;  Kll  fa  17M.  t  EUk4'>  UAMm, 
SM. 

■  Mr.  lIndiMiD-a  Utter  1«  Ur.  Spc^v  StenMoo,  STth  If  or.  1630. 

*  Mr.  tUnulleoi 


718 


cosSTiTimoN  OP  rar.  ckited  btxtea.         [book  in. 


have  been  left  without  a  provision.    Hie  phrsae  in  aa  compreheo- 
sire  as  any  that  could  have  been  used,  because  it  wan  not  lit  that 
the  conatitutional  authoritr  g(  the  Union  to  appropriate  its  reve- 
nuea  shoiiM  have  been  n-8trtct«(l  within  narrover  limits  than  the 
general   welfare,  and  bcvausc  this   nii-ciMarilr  embraces  a  vaxt 
Tariety  of  particulars  which  are  susceptiblt^  neither  of  specifica- 
tion nor  of  definition.     It  in,  thcruforo,  of  nccosaity  left  to  the 
discretion  of  the  national  Ic^^itilaturc  to  pronuunco  upon  the  ob- 
jects which  ooiiccru  the  gcueml  welfare,  and  fur  which,  under 
that  description,  an  appropriation  of  money   is  requisite  and 
proper.     And  there  sccmA  no  room  for  a  doubt  thaU  whalewr 
conccrua  the  general  interests  of  leaniing,  of  agriculture,  of  man- 
u&ictures,  and  of  coinmerr«,  are  wiUiin  the  sphere  of  the  national 
councils,  to  far  (W  rtyardt  an  appiteatum  of  montif.     The  only 
qualification  of  the  generality  of  the  phrase  in  queation,  vhliih 
aecins  to  bo  admissible,  is  this,  that  the  object  to  which  an  a|> ' 
propriation   of  money  is  to  be   made  must  be  general  and  not  I 
looai,  —  its  operation  extending  in  fact,  or  by  possibility,  Ihrouglt* 
ont  the  Union,  and  not  being  confined  to  a  parlirular  spot.     No 
objection  oupht  to  arise  to  this  constmction  from  a  suppasilius 
that  it  would  imply  a  power  to  do  whatever  else  should  appear  lo 
Congress  conducive  to  the  general  welfare.     A  power  to  apf 
priate  nioneff  with  this  latitude,   which  is  graiit*^  in  esprvss' 
terms,  would  not  carry  a  power  to  do  any  other  thing  not  author- 
ised in  the  Constitution,  either  cxpreHaly  or  by  fair  impliration. " ' 

§  97!).  Buttiio  most  thorough  and  elaborate  view,  which  per- 
haps has  ever  boon  taken  of  the  subjects  will  be  found  in  tlia 
exposition  of  President  Monroe,  which  accompanied  his  loessagv 
rc8|>ecting  the  bill  for  the  repairs  of  the  Cumberland  Road  (-fth 
of  May,  ISItS).  The  following  passage  contains  what  is  most 
direct  to  the  present  purpose;  and,  thonjfh  lon&  it  will  amply 
reward  a  dilija-nt  perusal.  After  quoting  the  claiisv  of  the  C^- 
Btitution  re«{>ecting  the  power  to  lay  taxes  and  to  provide  for  the 
common  defence  and  general  welfare^  he  proceeds  to  aa/  :  — 

§  980.    "That  the  second  part  of  this  grant  gives  a  ri^t  to 

>  Tb«rB  ia  DO  (knibt  Uiat  pRudont  Wiahitigtoo  fullj  AxwoRTd  in  thii  otwdna,  m 
Ml  nfwiUil  NcomiDcndaiiaiu  to  CongriM  at  otyMU  aF  UiU  lort,  papodaQr  of  iIm  an- 
nmtfjnmM  <d  Diui>(nctiu««,  of  louninit,  orsaniTi!nll]r,  of  xif  ■■  •■—•<■■-•■■    ■'  — i- 
tallaiT,  of  TOiDDiMva  asd  iuivIkuIoii,  of  a  lulUtary  acaAtmy,  *i 
S  Minhall's  Ufa  d  WaaLLDRtoii.  di.  4,  pp.  231.  S3>i  1  Wnt*  .-^ui'   i^i-^  ^i^  ,  t 

Vait  >  suiB  PapMi,  loa,  no,  m. 


CH.  HV.] 


POWEas  op  00KGBE8S  —  TAZB8. 


719 


ftpproprintc  tho  public  money,  and  nothing  mora,  is  eTiilcnt  frQm 
th«  following  coiisidiTutioiut:  (1)  if  Ibo  right  of  aitpruprifttiun 
U  not  given  hj  this  clauso,  it  is  not  f^ivon  &t  iill,  tlivro  tiL-ing  no 
oth«r  grant  in  thv  Cunstitution  which  irircs  it  directly,  ur  which 
has  any  ItvAringon  the  subject,  even  by  intplicstiun,  cxnipt  thv 
two  following:  first,  tlie  prohibition,  which  is  cunUiiied  in  the 
eleventh  of  the  cnumorated  jwwers,  not  to  appropnato  money  for 
the  au]iport  of  ainiies  for  a  longer  term  than  two  years;  and, 
Mcondly,  the  declaration  in  the  sixth  member  or  niaiise  of  the 
ninth  section  of  the  first  article^  tJiat  no  money  shall  he  drawn 
from  the  treasury,  hut  in  consequence  of  appropriations  made  by 
lair.  (2)  This  part  of  the  grant  has  none  of  the  characteristics 
of  a  distinct  and  originni  power.  It  is  manifestly  incidental  to 
the  great  objects  of  the  first  branch  of  the  grant,  which  author- 
izes CongreM  to  lay  and  collect  taxes,  duties,  imposts,  and  ex- 
cises:  a  power  of  vast  extent,  not  granted  by  the  confederation, 
the  grant  of  which  formed  one  of  the  principal  inducement*  to 
the  adoption  of  this  Cotislitution.  II  both  [Arts  of  the  grant  are 
taken  tog^'tlicr,  as  thoy  must  be,  for  tlic  one  follows  iinniediatcly 
after  the  other  in  thu  same  sentunoe,  it  seems  to  be  iinputssiblo 
to  give  to  the  latter  any  AUior  construction  than  that  contended 
for.  Congress  shall  have  {luwcr  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises.  For  what  purpose?  To  pay  the  debts, 
and  provide  fur  the  common  defcncu  and  general  welfare  of  the 
United  .States;  an  arrangement  and  phrascolog}'  which  clearly 
show  that  the  latter  |Kirt  of  tJieclauKc  w;ks  intended  to  enumer- 
ate the  piirjioscs  to  whioh  the  money  thus  raixi-d  might  he  a|i|)ro- 
priated.  (S)  If  this  is  nut  the  real  object  and  fair  construction 
of  the  second  [wirt  of  this  grant,  it  foilovra,  either  that  it  has  no 
import  or  operatiun  whatever,  or  one  of  »mch  greater  extent  than 
the  firet  part.  This  presumption  is  evidently  groundless  in  both 
instanreK;  in  the  fi rat,  because  no  part  of  the  Constitution  eaii 
he  considered  as  useless,  no  aentence  or  elaiiso  in  it  wiUiout  a 
meaning.  In  the  second,  becaoM  such  a  eonstnietion  aa  would 
make  the  second  pnrt  of  the  clause  an  original  grant,  embracing 
the  same  olijects  with  the  firat,  bnt  with  much  greater  power 
than  it^  would  lie  in  the  highest  degree  alisurd.  The  order  getter- 
ally  obsen'ed  in  grants,  an  order  founded  in  common -senw,  since 
it  promot«-s  a  eloar  underatandlng  of  their  import,  is  to  grant 
the  power  intended  to  be  conreyed  in  the  most  full  and  explicit 


720 


ooKaTtTcnoN  of  the  umted  states. 


[BOOK  ID. 


manner;  and  thrn  to  explain  or  qnalify  it,  if  explanatiun  or 
quftlificatiuii  should  bo  UMceaar/.  This  order  has.  it  it  b«- 
liered,  boon  invariably  observed  in  all  the  grants  rontained  iri  Iho 
CoDKtitutiuii.  In  the  next  place,  beirauae,  \f  the  clauae  iu  (|ue8 
tJOD  is  not  con«tnied  mci'ely  aa  an  authority  to  apprtypriatc  the 
])ublic  money,  it  must  be  ohTious  that  it  conveyn  a  power  of 
indefinite  and  unlimited  extent;  that  there  would  hare  been  no 
\ae  for  the  special  powers  to  raiee  and  auppurt  armiea  and  a 
navy;  to  regiilate  commerce;  to  call  forth  tho  militia;  or  even 
to  lay  and  collect  taxea,  dutiua,  imposts,  and  excises.  An  un- 
qualified power  to  pay  the  debts  and  provide  for  Uie  common  de- 
fence and  general  welfare,  as  the  second  part  of  this  clause  would 
b«,  if  considered  aa  a  distinct  and  separate  frraot,  would  extend 
to  every  object  in  which  the  poblic  could  bo  intensti'rd.  A  pnw»?r 
to  provide  for  tho  common  defence  would  give  to  Congress  the 
command  ol  the  whole  force,  and  of  all  the  resources  uf  tho 
Union;  but  a  right  to  provide  for  the  general  welfare  would  go 
much  further.  It  would,  In  efTcc^  break  down  all  tho  barrtcn 
between  Iho  .Slates  and  the  general  government,  and  cousolidato 
the  whole  under  ihe  latter. 

§  981.  "The  powers  specifically  granted  to  Con^rreas  are  what 
arc  called  the  enumerated  powers,  and  are  numbered  in  the  order 
in  which  they  stand;  among  which,  that  contained  in  the  first' 
clause  holds  the  first  place  in  point  of  importance.  If  tlie  power 
created  by  Uie  latter  part  of  the  clause  is  considered  an  original 
grant,  unconnected  with  and  independent  of  tho  5rst,  as,  in  tliat 
case,  it  must  he,  then  the  first  pert  is  entirely  done  away,  as  aro 
all  tho  other  grants  in  the  Constitution,  Itciiii^  compleLoly  ab- 
sorbed in  the  transcendent  power  granted  in  the  latter  (tart.  Bm 
if  the  clanae  be  construed  in  the  senso  contended  for,  Iht-n  crenr 
part  haa  an  important  meaning  and  effect;  not  a  line  or  a  word 
in  it  is  superfluous.  A  power  to  lay  and  collect  taxea,  dutii^ 
imposts,  and  excises  subjects  to  the  cal!  of  Congresa  every  branch 
of  tJio  public  revenue,  internal  and  external ;  and  the  addition  lo 
pay  tho  debts  and  provide  for  tho  common  ilefence  and  ](eneral 
welfare  gives  the  right  of  applying  the  money  raised,  that  is,  of 
appropriating  it  to  the  purposes  specified,  accordini;  to  a  proper 
construction  of  the  terms.  Hence  It  followa,  that  it  i«  Ihe  first 
part  of  the  clause  only  which  gives  a  [tower,  which  afTocls  in 
any  manner  tho  power  rcmaiuii^  to  the  States;  us  tho  powor  lo 


CH.  XIV.] 


t>0*)3lS  OP  OOKORESS — TAXES. 


721 


nti^  moncr  from  the  people,  whether  it  be  by  taxes,  duties,  im- 
posts, or  excises,  though  concurrent  in  the  States,  as  to  taxcn 
and  excisea,  must  neccwuirily  do.  But  tfao  uae  or  ap[iUaition  of 
the  money,  after  it  is  rained,  ia  a  powvr  altcgi^tlicr  of  a  difforent 
character.  It  iiupusi-fl  no  burden  on  tho  peuplu,  nor  can  it  act 
on  them  in  &  sense  to  take  power  from  the  Htates;  or  in  any 
sense  in  which  power  CAn  be  controverted,  or  iR-como  a  question 
between  the  two  go^'e^mncut».  Ttic  application  of  money  raised 
under  a  lawful  puwur  ta  a  right  or  grant  which  may  bo  abused. 
It  may  bo  applied  {inrtJulty  among  the  States,  or  to  improper 
purpoaea  in  our  furvigii  and  domestic  cunuems^  but  still  it  is  a 
power  not  felt  id  the  sense  of  other  powcrv,  since  tlio  only  com- 
pliiini  which  any  .^(ate  can  make  of  ttiich  [lartinlity  nnd  ubiise  ia, 
tliat  some  other  .Slatt*  or  States  have  obtained  greater  benefit  from 
Uic  application  than,  by  a  just  rule  of  apportionmeat,  they  were 
entitled  to.  The  right  of  appropriation  is,  therefore,  from  its 
nature,  secondary  and  incidental  to  the  right  of  raiding  money; 
and  it  was  proper  to  place  it  in  the  aame  grant  and  same  clause 
with  that  right.  By  finding  tlicra,  then,  in  that  order,  we  see  a 
.-JKW  proof  of  the  senae  in  which  the  grant  waa  made,  corrcspond- 
ig  with  tJie  view  herein  taken  of  it 
§  982.  "The  last  part  of  Uiia  grant,  which  provide*  that  All 
dutiea,  impoats,  and  excises  shall  be  uniform  throughout  the 
Unit^'d  Statett,  furniahea  another  strong  proof  that  it  was  not 
intended  that  the  second  part  should  constitute  a  distinct  grant 
in  the  fwnup  almve  stated,  or  convey  any  other  right  than  tliat  of 
appropriation.  This  provision  operates  e-Tclusively  on  the  i»owor 
granted  in  the  first  part  of  the  clause.  It  recilce  three  branehea 
of  tJiat  power, —  duties,  imposts,  and  excises, —  those  only  on 
which  it  could  operate;  tlie  rule  by  which  the  fourth  —  that  is, 
taxes — should  bo  laid,  being  already  provided  for  in  another 
part  of  tile  Constitution.  Tho  object  of  this  provisiou  Is  tusecuro 
a  just  eqiiulity  among  tho  States  in  (he  exercise  of  that  power 
by  Congnvs.  By  placing  it  after  both  the  grants,  Uiat  is,  after 
that  to  raise  and  that  to  appropriate  the  public  money,  nnd  mak- 
It^  it  apply  to  the  first  only,  it  shows  that  it  niis  not  inleudi-d  that 
the  power  grnntcd  in  the  second  should  be  paramount  itt  and  de- 
stroy that  trranted  in  llie  first  It  shows,  also,  that  no  snch  for- 
midable [Hiwer  na  that  suggested  luid  been  trranted  in  the  second, 
or  any  power  against  the  abuse  of  wbid)  it  was  thought  neoea- 
VOL.  I.  —  49 


J 


722 


coNarmrnos  OP  las  ymrED  statfs.        [book  m. 


aarjr  «pccialiy  to  provide.  Snrely,  if  it  was  doemed  proper  to 
gnard  a  specific  power  of  limited  extent  and  well-known  import 
agaiiuit  injustice  and  abuite,  it  would  bare  Ix^en  ntucli  more  m  lo 
hare  guardt^d  against  tbv  abuse  of  a  power  of  ftuoh  vast  nxlent, 
and  Ko  indefinite  aa  would  have  been  granted  by  tbe  aecond  part 
of  the  claunp,  if  considert-d  as  a  distinct  and  original  grant 

§  9&8.  "With  thin  cuiistructiun  all  othor  enumerated  grants, 
and  indeed  all  the  grantii  of  power  containni  in  the  Conatjtation, 
have  their  full  o;)uration  and  effect.  They  all  stand  well  to- 
gether, fullilling  the  great  purposes  intended  by  them.  Under 
it  we  behold  a  great  scheme,  consistent  In  all  its  parts,  a  govern- 
most  inatituted  for  national  purpbHea,  veatcd  with  adequalp  pow- 
ers for  thusc  purpuHcti,  commencing  witli  the  nio«l  important  of 
all,  that  of  revenue,  and  proceeding  In  regular  order  to  tbe 
others  with  which  it  was  deemed  proper  to  endow  it;  all,  too, 
drawn  with  the  utmost  circumspection  and  care.  How  tntich 
more  consistent  is  this  construction  with  the  great  objects  of  tfao 
institution,  and  with  the  high  character  of  Iho  enlig))teni-d  luid 
patriotic  citizens  who  framed  it,  as  well  as  of  thuse  who  ratified 
it,  than  one  which  subverts  every  sound  principle  and  rule  of 
construetion,  and  throws  everj'thing  into  confaaion. 

5  984.  "I  have  dwelt  thos  long  on  this  part  of  t}\o  subject 
from  an  earnest  desire  to  fix,  in  a  clear  and  satisfactory  maniier, 
tbe  import  of  the  second  part  of  this  grant,  well  knowing,  from 
tbe  generality  of  the  terms  used,  their  tendency  to  lead  into  er- 
ror. I  indulge  a  strong  hope  that  the  view  herein  presented  will 
not  be  without  effect,  but  will  tend  to  satisfy  tbe  nnprejudiced 
and  impartial  that  nothing  more  was  granted  by  that  part  than 
a  power  to  apprvpriate  the  public  money  raised  under  the  other 
part.  To  what  extent  that  power  may  be  carried  will  be  the 
next  object  ol  inqnirj;: 

§  98-J.  "  It  is  contended  on  the  one  aide  that,  as  tlie  national 
goremmcnt  is  a  government  of  limited  powers,  it  has  no  riji^t 
to  exjiond  money,  except  in  the  perfomianw*  of  acts  anihorixed  by 
tbe  other  specific  grants,  according  to  a  strict  construction  of 
their  powers;  that  this  grant,  in  neither  of  its  branches,  gives  lo 
Congress  discretionary  power  of  any  kind,  t>tit  is  a  mere  instni- 
ment  in  its  hands  to  carry  into  effect  the  powcra  eoiitaim'd  in  the 
other  grants.  To  this  construction  I  was  inclined  in  tlie  mom 
early  stage  of  oar  government;   but,  on  further  reflection  and 


CH.  zir.] 


rOWEBS  OF  CONGBBaS  —  XaXBO. 


7SS 


otMcn-ation,  mj  mind  has  undergone  a  change,  for  reasooi  which 
I  will  frunklj  unfuld, 

§  986,  *'Thc  i^rant  coiuiitte,  as  heretofore  oiKterved,  of  a  two- 
fold power:  the  first  to  nii»o,  and  the  spcund  to  appropriate,  the 
public  money;  aod  the  terms  iwcd  iu  both  inHtances  are  general 
end  unqualified.  Eneh  branch  was  obviously  drawn  with  a  view 
to  tlto  other,  and  the  imptjrt  of  each  touds  to  illustrate  that  of  the 
other.  The  grant  to  raise  nionev  gii'cs  a  power  over  every  sub- 
ject from  which  revenue  may  be  drawn,  and  is  made  in  the  same 
nuumer  with  the  gr*nt«  to  doclaro  war,  to  raise  und  support 
armies  and  a  nkry,  to  regulate  commerce,  to  cetAbltsh  pust-ofbccfl 
and  poflUroada,  and  with  all  the  other  specific  grmnta  to  the  gen- 
eral govei-nroent  In  the  discharge  of  the  power*  contained  in 
anr  of  these  grants,  there  is  no  oUier  check  than  that  which  is  to 
be  found  in  the  great  principlen  of  our  system, —  the  respoiisibil* 
ity  of  the  representative  to  his  conslitiients.  If  war,  for  exam* 
pic,  is  necensarr,  and  Oongrew  declare  it  for  good  cau»p,  their 
constituents  will  support  tbem  iu  it  A  like  sop)>ort  will  be 
given  them  for  the  faithful  discharf!:e  of  their  dnties  under  any 
and  every  other  power  vested  in  the  United  i^tate8.  It  affords 
to  the  friends  of  our  free  governments  the  most  heartfelt  conso- 
lation 'to  know,  and  from  the  best  evidence,  —  our  own  cxperi* 
ence,  — that,  in  great  emergencieR,  the  boldest  measures,  aueh  as 
form  the  strongest  appeals  to  the  virtue  and  patriotism  of  the 
people,  arc  sure  to  obtain  their  most  decided  approbation.  Bnt 
should  the  representative  act  corruptly  and  betray  his  trust,  or 
otherwise  prove  tJiat  he  was  unworthy  of  the  eonlideDcc  of  his  con- 
stituents, he  would  lie  equally  sure  to  lose  it,  and  to  be  removed, 
end  otherwise  censured  according  to  his  deserts.  The  fwwer  to 
raise  money  by  taxea,  dutiea,  imposts,  aud  oxeiiics  is  alike  tm- 
qoalilied ;  nor  do  I  sea  any  check  on  the  exercise  of  it,  other  than 
that  wliich  applies  to  the  other  powers  above  recited,  —  the  re- 
sponsibility of  the  representative  to  his  constituents.  Cont^rcss 
know  the  extent  of  the  publio  engagements,  and  the  sums  neces- 
sary to  meet  them;  they  know  how  nmch  maybe  derived  from 
each  branch  of  revenue,  without  pressing  it  too  far:  and,  |>nying 
dne  rcf^ird  to  the  interests  of  the  people,  they  likewise  know 
which  branch  tmyiit  to  be  resorted  to  in  the  first  instanca  From 
the  coinmenoemeut  of  the  government,  two  branchc«  of  this 
power  (duties  and  imposts)  have  been  in  constant  operntioo,  the 


CONSTITCnON  OF  TUB  UNITEO  8TATC8.  [boos  OX. 


nveaue  from  irhicb  hus  iiupportod  thv  gorcnunent  in  its  Tsrioos 
brancheis  and  met  it«  otiier  ordinary  cugt^^mcnta.  In  great 
emcr^i'nvli'ai  tlio  oUior  two  (taxvB  and  exciws)  have  likevise 
bccQ  n-fturtcd  lu;  and  neither  was  tliu  riglit  uor  the  pulicy  ever 
called  in  ijncstioiL 

§  987.  "If  we  looli  to  the  (kerond  liranch  of  ttiia  i>ower,  that 
which  authorizes  the  api>ro[>riatii>ii  of  the  iuou«y  tliii^  raised,  wa 
find  thnt  it  is  not  less  general  and  unqualified  than  the  power  to 
raise  it.  More  comprehensive  tcrma  than  to  *pay  the  dehts  and 
provide  for  the  common  defence  and  general  welfare '  could  not 
have  i>eeD  used.  So  intimately  connected  with,  and  dependent  on, 
each  other  are  these  two  hranchca  of  power  that^  bad  either  been 
limited,  the  limitation  would  hare  had  a  like  effect  on  the  other. 
Had  the  power  to  raiiie  money  been  conditional,  or  restricted  to 
special  purposes,  the  appropriation  must  have  corrv^mnded  with 
it;  for  none  hut  the  money  raiited  could  be  appropriated,  nor 
could  it  be  appropriated  to  other  purposm  than  those  which  were 
permitted.  On  the  other  hand,  if  the  right  of  appropriation  had 
boon  restricted  to  certain  purposes,  it  would  be  useless  and  im- 
proper to  raise  more  than  would  be  adequate  to  those  purptiseB. 
It  may  fairly  be  inferred  that  tliese  restraints  or  checks  bare 
been  carefully  and  intentionally  avoided.  Tbe  power  In  each 
branch  is  alike  brood  and  unqualified,  and  eai-h  is  drawn  with 
peculiar  fitness  to  the  other;  tlie  latter  requiring  terms  of  gnnt 
extent  and  force  to  accommodate  the  former,  which  have  been 
adopted,  and  both  placed  in  tbe  same  clause  and  sentence.  Can 
it  be  presumed  that  all  these  circumstanoes  were  so  iiiooly  ad- 
justed by  mere  accident?  Is  it  not  more  jnst  to  conclude  tiuit 
they  were  the  rtisult  of  due  deliberation  and  design  t  Had  it 
been  intended  that  Coogrcsa  should  be  restricted  in  tbe  appropri- 
ation of  the  public  money,  to  such  expenditures  as  wire  authorized 
by  a  rigid  construction  of  the  other  specific  grants,  how  easy 
would  it  luive  been  to  have  provided  for  it  by  a  declaration  to 
that  effect.  The  omission  uf  such  declaration  is  therefore  an 
additional  proof  (hat  it  was  not  intended  that  the  gnmt  should 
he  so  conatruod. 

§  988.  "  It  was  evidently  impossible  to  have  suhjected  tliis 
grant,  in  either  branch,  to  such  restriction,  without  cxpiuing  the 
pivemment  to  very  aerioua  embamssment  How  carry  it  into 
effect  T    If  the  grant  had  been  made  in  any  degnw   dependent 


ca.  XIV.] 


POWKBS  OP  C0NCKES3  —  TAXES. 


725 


upon  the  Sates,  th«  government  would  hav«  experienced  the  fato 
of  the  ooofederatioa.  Like  it,  it  would  have  withered  aud  Boon 
perished.  Had  the  Supreme  Court  )>een  authorized,  or  should 
Rny  other  triliunal,  distiuct  from  the  guvenunent,  be  authorized 
to  interpose  it«  veto,  and  to  e&y  that  mure  moaej-  had  been  raiat^<l 
under  either  branch  of  this  power  (that  ia,  by  taxes,  duties,  im> 
posts,  or  esciscii)  Uian  waa  DCCL'SHur}' ;  that  such  a  lax  or  duty 
w)ut  uhcIcim;  that  the  uppropriatiuu  to  this  or  that  purpose  was 
unconstitutional ;  the  movement  niigtit  have  been  auspc-nded,  and 
ttw  whole  system  disorganized.  It  vsa  impossible  to  liave  cre- 
ated a  power  within  the  goveruocnt,  or  any  other  |M)wor,  distinct 
from  Cougnta  aud  the  executing  which  should  control  the  mo^-e- 
rocnt  of  the  government  in  this  res|)ect,  and  nut  destroy  it.  Hud 
it  been  declared  by  a  clause  in  tbe  Cunstituliuu  tliat  the  ex- 
penditures under  this  grant  should  he  n}«lTicted  to  the  construc- 
tion whieh  mi^t  be  given  of  the  other  f^nts,  such  re^tnitnt, 
though  the  most  innooent,  could  not  have  failed  to  liave  had  nn 
injurious  effect  on  the  vital  principles  of  the  government,  and 
often  on  its  mo«it  important  measures,  lliose  wlio  might  wish 
to  deft«t  a  meaaure  proponed  might  construe  the  power  relied  on 
in  support  of  it  in  a  narrow  and  contracted  manner,  and  in  that 
way  fix  a  precedent  inconsistent  with  Uie  true  import  of  the 
grant.  At  other  times,  those  who  favored  a  measure  might  give 
to  the  power  relied  on  a  forced  or  strained  construction,  and, 
succeeding  in  the  object,  fix  a  precedent  in  the  op)>c»ite  extreme. 
Thtis  it  is  manifest  that,  if  the  right  of  appropriation  be  confined 
to  tliat  limit,  measures  tnay  oftentimes  bo  carried  or  defeated  by 
considerations  and  motives  altogether  independent  of,  and  un- 
connected with,  their  merits,  and  the  several  powers  of  Congress 
recci*-e  construct  ions  wpially  inconsistent  with  their  true  im- 
|)ort  No  such  declaration,  however,  has  been  made ;  and,  from 
the  fair  iuijutrt  of  the  grant,  am),  indeed,  its  piwitivc  terms,  the 
inference  that  such  was  intended  seems  to  hv  precluded. 

§  989.  "  Many  considcrutions  of  great  weight  operate  in  favor 
of  (his  construction,  while  1  do  nut  |>erM-ive  any  M«^>riiHiit  aUyc- 
tion  to  it  If  it  be  entablishod,  it  follows  that  the  wonls  'to 
provide  for  the  common  defence  and  general  welfare '  have  a 
definite,  safe,  and  useful  meaning.  The  idea  of  their  forming  an 
oii^nual  grant  with  unlimited  power,  superseding  every  other 
grant,  is  abandoned.     They  will  be  considered  simply  as  convey- 


emi 


726 


coKSTmrnos  op  the  onited  stATsit.        [book  m. 


ti^  a  ri|^t  of  appropriation, — a  right  iadiapmtHahlo  to  that  ol 
ramng  a  revenue,  and  ncceBsanr  to  expenditures  under  erery 
grnnL     Ky  it,  as  already  observt-d,  no  new  power  will  be  taken 
from  the  Statcis  the  money  to  be  appropriated  being  raised  under 
a  )>ower  already  granted  to  Congren.     By  it,  too,  Hie  motivs 
for  giving  a  forced  or  strained  constniction  to  any  of  tli«  otlwr 
gpecilic  grants  will,  in  most  inatAncca,  be  diminished,  and  in 
many  utterly  destroyed.     The  importance  of  this  conBidaraiion 
cannot  l>e  too  highly  estimated,  etnce,  in  sddllion  to  the  exam- 
plea  already  given,  it  ought  particularly  to  be  rccoiloelcd  that, 
to  whatever  extent  any  speeific  power  may  be  carried,  tbc  ri^tt 
of  jurisdietion  goes  with  it.,  pursuing  it  Uiruiigfa  all  its  ineidonts. 
The  very  important  agi'ney  which  this  gnnt  haa  in  carrying  into 
effect  every  other  grant  in  a  strong  argument  in  favor  of  tfa«  cuO' 
struction  contended  for.     AM  the  other  gnuila  are  limited  by  the 
nature  of  the  oflico*  which  tlicy  have  scventllr  to  perform,  each 
coureying  a  power  to  do  a  certain  tl)ing,  and  that  only;  whereas 
this  is  coextensive  with  the  great  sdiome  of  the  govemroent  tt- 
ielf.     It  is  the  lever  which  raisea  and  puU  the  whole  machinery 
in  motion,  and  continues  the  movement.     Should  either  of  the 
other  grants  fail  in  consequence  of  any  condition  or  limitation 
attached  to  it,  or  miitcnniM ruction  of  its  powere,   mach   injury 
might  follow;  but  still  il  would  be  the  failure  of  one  branch  nf 
power,  of  one  item  in  the  system  only.     All  the  others  might 
more  cm.     But  should  the  right  to  raise  and  appropriate  the  {tab* 
lie  money  be  improperly  restriotod,  the  whole  system  might  be 
sensibly  affected,  if  not  disoi^aniied.     Each  of  the  other  grants 
is  limited  by  the  nature  of  the  grant  itself.     This,  by  tlie  nature 
of  the  government  only.     Hence  it  became  necessary  that,  lilce 
the  power  to  declare  war,  this  power  should  be  commcnaurate 
with  the  great  scheme  of  the  government,  and  with  all  it«  pui^ 
poecs. 

§  990.  "  If,  then,  the  right  to  raise  and  appropriate  the  public 
money  is  nut  restricted  to  the  expenditun^  under  the  other  spe- 
cific gniiils,  according  to  a  strict  constnictioa  of  their  powen 
n?s|iectirely,  is  there  no  limitation  to  it?  Qave  Ciiniircms  right 
to  raise  and  appropriate  the  public  money  to  any  and  to  evcrr 
purprae  according  to  their  will  and  plcamreT  Tbcy  certainly 
have  not  The  government  of  the  United  States  is  a  litnltm) 
government,  instituted  for  great  national  [wrposca,  and  for  thi«c 


cu.  x]r.] 


POVraS  OP  OOXGRBSS  —  TkXtB. 


727 


ouljr.  Other  intcroiU  arc  oonunittwl  to  the  States,  idiom  dutj! 
it  IB  tu  provide  for  lltOTD.  Each  government  should  look  to  tJie 
great  amr t^JSL-miHl  pur{>c)8i.-9  for  whiuli  it  wus  instituted,  and 
eonfinc  iOwlf  lo  those  purposes.  A.  atato  govomniunt  will  rarely, 
if  ever,  uppljr  money  to  national  purpoee*,  without  making  it  a 
charge  to  th«  nation.  The  people  of  the  State  wodU  not  permit 
it  Nor  will  Congreas  be  apt  to  apply  money  in  aid  of  the  iState 
administrutiona,  for  purposes  strictly  local,  in  which  t)ie  nation 
at  lar^  has  no  interest,  altlioiigh  the  State  should  desire  it. 
The  people  of  the  other  Statoa  would  condemn  it.  They  wwitd 
declare  that  Congrras  had  no  right  to  i&\  them  for  such  a  pur* 
po»c,  and  diamias  at  the  next  election  such  of  their  represents* 
tives  aa  had  rotcd  for  the  measure,  especially  if  it  should  be 
severely  felt.  I  do  not  think  that  in  offices  oi  this  kind  there  is 
much  danger  of  the  two  govcmnients  mistaking  their  interests 
or  tlieir  duties.  I  rather  auspect  that  they  would  soon  have  a 
clear  and  distinct  undurstaudiug  of  tliem,  and  move  on  in  groat 
harmony. " 

§  991.  In  reirard  to  the  pnutioc  of  the  goreminent,  it  has 
been  entirely  in  ooiifonnity  to  the  principles  here  laid  dowiL 
Appropriations  hare  never  been  limited  by  Congress  to  cases 
falling  within  the  specific  poweraenuineniU-d  in  Ihc  Constitution, 
whether  those  (Wwcra  be  construed  in  their  broad  or  their  narrow 
sense.  And  iu  an  especial  manner  appropriations  ha^-e  be«n 
made  to  aid  internal  improvements  of  various  sorts,  in  our  roads, 
our  navi)^tiuu,  our  streams,  and  other  objects  of  a  national  char- 
acter and  importance. '    In  some  cases,  not  silently,  but  upon  dls- 

■  It  worM  t«  inpntctkaU*  to  numntU  ■!!  tkcae  nrioiu  ot|jeett  of  apiiropriiilan 
in  lUuil.  Mas;  of  tbsin  will  Iw  fouuil  MWOMntad  tii  Pmldant  Uoaro*'*  Kxptntian, 
of  4tb  or  Uajr,  \SiX  pp.  nU)  tS.  Th«  ulntui  apimiptlattea  acU  »fmlk  m  vny  nmiig 
litiRiMaa  oa  Ibi*  mbjtoL  EveiT  Prtiidtait  of  iha  UrIMI  9Mm.  OMpt  PwriiMl 
Utdinn,  aN-iiM  to  lian  tctsd  npOM  Uw  aaiiw  doctria*.  PreiiiWM  JiCmrai  tan  Wdly 
U  4MiMd  an  e«*ptk«.  In  kU  taity  opisioo.  alraadjr  qnolnl  (4  Jeflenon'*  Cvnwfi. 
6S1).  Ik  nawifMlr  nwnlainad  it  In  fcii  Mt—gt  to  Coagnt  (2  Dae.  1800.  W.ii  i 
StaU  PapM^  4S;.  4U).  be  Mam*  lo  hna  dmM  It  In  alfnliiK  tb*  btll  for  the  Coiu- 
btrlaad  Raul,  on  ISUi  Harch,  tSOS.  Ad  of  IBOfl,  cb.  I^  ho  oMtaint;  gan  il  ■  fwiial 
•uella%  aa  wall  ai  npan  other  octariwi.  Bm  ilr,  Honraa'i  Eipaattioo.  dd  4Ui  Slay, 
ItSS,  p.  41.  But  (M  t  J«S«taan'i  Corrafii.  UT,  wImr  Ht.  JolTcnan  adofda  an  oi'pinltn 
naaoDii^.  Prralrlaiil  Jarlaoa  baa  *dopt*>l  It  with  manlfeat  rductane* ;  Iwl  hn  conwl. 
en  it  aa  tirm\j  mlnlitUlird  by  Iho  practka  of  lb*  ga**rnm*iit.  K«<  hi*  Veto  Hoaaga 
aa  tba  UayarlUo  Raad  HUI.  tJlh  Hay.  ISMi  4  ElUat'a  Dak  333  l«  33&.  Tba  opiniana 
uaintalBed  m  CoMgnai^  b*  aikd  a(^aat  Iba  wune  doctrina,  will  be  favnd  is  4  EUiDt** 


K 


738 


CONSTITDTION   OP  THB  CNTTED  BTATBO.  [bOOK  IU. 


cuBsion,  Confcrcss  has  f;one  the  length  of  maliing  upproprtatiofls 
to  aid  destitute  foreif^cni  and  citicH  laboring  under  »crcr« 
calamities;  as  in  the  niliof  of  tlie  Ht.  Doniingo  refugees,  in  17&1, 
and  the  citizctut  uf  Vcntizuclo,  who  suffered  from  an  e«rUiquake 
in  1613.'  An  illustration  etiually  forcible  of  ft  donwstio  charac- 
ter, is  in  the  botiatjr  given  in  the  cod-fisheries,  which  wa«  stren- 
uously rOHisted  on  constitutional  grounds  in  171)2,  but  which  still 
maintainti  iU  place  in  the  statute-book  of  the  United  States.* 

§  9D2.  No  more  need  he  said  upon  this  subject  in  this  place. 
It  will  be  necessarily  resumed  again  in  the  discussion  uf  othur 
clauses  of  the  Constitution,  and  vspecially  of  the  powers  to  rrf^- 
late  commerce,  to  establish  post-oflices  and  pustroads,  and  to 
make  internal  improvements. 

§  998.  In  order  to  prevent  the  necessity  of  roeorring  again  to 
the  subject  of  taxation,  it  seems  desirable  to  brinp  toRL'ther,  in 
this  connection,  all  the  remaining  provisions  of  the  Constitution 
on  this  subject,  thoogfa  they  are  differently  arrsnged  in  that  in- 
strument. The  first  one  is,  "  No  capitation  or  other  direct  tax 
shall  be  laid,  unless  in  proportion  to  the  census,  or  enumcratjan 
hereinbefore  directed  to  be  taken."  Tliis  inuludea  poll-taxes 
and  land-taxes,  as  has  been  already  remarked. 

§  994.  The  object  of  this  clause  doubtless  is,  to  secure  the 
Southern  States  against  any  undue  proportion  of  taxation;  and, 
as  nearly  os  practicable,  to  overcome  the  necessary  ineiquaiities 
of  direct  tax.  'Die  Smith  has  a  very  lar^i^  slave  population ;  and 
consequently  a  poll-tax,  which  should  bo  laid  by  the  rule  of  uni- 
formity, would  operate  with  peculiar  severity  on  them.  It  wouM 
tax  their  property  beyond  its  supposed  relative  value  and  produc- 
tiveness to  white  labor.  Hence  a  nile  is  adopted,  which  in 
effect^  in  relation  to  poll-taxes,  exempta  two-fifths  of  all  aUvea 

Deb.  SH,  S40,  US,  SH,  3»0,  »4.  S9t,  3*1,  S3S.  S3i.  licport  on  hxtoii  tR]«M.- 
Ipant«,b7Ur.  Han*plii}l.iBlbeHaaaear  RopmniMlivM,  lOUi  PcIl  IftSI.  Sr«l  K«at, 
Omiuh.  Unt.  IS.  pp.  2SI\  aSE  iStrgunt'iCoiial.  Uw,  cb.  33,  n>.  Sll  (oSM  ;IhHe<m 
tlia  Omut.  «h.  9.  p.  10(  ;  3  UnlU>l  Slun  l^w  Jnur.  ApHI,  1»S6,  fp,  8:^1,  HI  In  2S3. 

>  8(*Aclaf1SthF(ih,17»4,f^-S;AotorSttiM>7,lB]S.clt.70:  4  EtUot*  D<b*iM, 
940. 

■  See  Act  of  ConKma.  of  Ifth  Ftb.  17BS,  eh.  < :  4  FJUol'*  I>*bBi«*,  SSI  to  S3S  ) 
Act  «f  IBIS,  «Il  $1.  Sw  alBD  lUinilloci'i  Roporl  on  UanuUcnins,  ]7»1,  ■nirle,  Amu* 
Mm.  Tbn  upoech  of  the  Hod.  Mr.  Grinkj,  in  llin  kmM  of  SoiKli  CVimlina.  in  Dm. 
1828,  Mbl  of  lh«  Unn.  Mr.  nii)ier,  In  iIm  Bihim  «f  KeptnacatatiTca  of  tlin  mrm  RUIie,  En 
^Dm.  Itt^  Mntiiin  vttv  «UbonM  mJ  abta  wpwatoiit  of  tli*  wbol«  latgoO.  and  wlU 
nnMrd  k  dtUgont  {kdmL 


I 


OH.  xir.] 


POW£nS  OP  CONGRESS — TAZBS. 


729 


from  taxation,  and  thus  is  eappoeed  to  equalize  the  biirdon  vHh 
the  white  population.* 

§  995.  In  reapect  to  direct  taxes  on  land,  the  difficulties  of 
tnakiu)^  a  due  apportionment,  bo  ai*  to  ec)ualixe  the  burdens  and 
expeows  uf  tbe  Union  according  to  the  relative  wealth  and  nbil 
it}-  of  the  State*,  wore  felt  aa  a  most  seriotaa  evil  under  the  con- 
federation. By  that  instrument,  it  will  be  reooUeJted,  the 
a{^urtioiuni-ut  wa^  lo  U'  among  tlio  States  according  to  the  value 
of  all  land  n-idiin  each  State,  granted  or  surveyed  for  any  per- 
son, and  the  huildings  and  improvemcitts  thereon,  to  Iw  esti- 
mated in  auch  mode  as  Congress  should  pre&cril>e.  The  whole 
proceedings  to  accomplish  such  an  estimate  wore  so  operose  and 
ini'ouvenient,  that  Congress,  in  April,  1783,' reeomnu-ndcd  as  a 
eulmtitute  for  Uie  article  an  apportioumcut,  foundiMl  on  the  busts 
of  population,  adding  to  the  whole  number  of  white  and  other 
free  citiieits  and  inhabitants,  including  tliose  bound  to  service 
for  a  term  of  years,  thrcc-liftlis  of  all  other  persons,  etc.,  iu  each 
State ;  which  is  precisely  the  rule  adopted  in  the  Constitution. 

§  996.  Those  who  are  accustomed  to  rontt^mplnte  iJie  circiim* 
stances  which  produce  and  constitute  national  wealth,  must  be 
aatisGcd  that  there  is  no  common  standard  )iy  which  the  degrees 
of  it  can  be  ascertained.  Ncitlicr  the  value  of  lands,  nor  the 
numbers  of  the  people,  which  have  been  successively  proposed  as 
tlic  rule  of  State  contributions,  has  any  pretension  to  being 
deemed  a  just  representative  of  that  wealth.  If  we  compare  the 
wealth  of  tJie  Netherlands  with  that  of  Russia  or  Germany,  or 
even  of  France,  and  at  the  aame  time  compare  the  total  value  of 
the  lands  and  the  aggregate  population  of  the  contracted  terri- 
tory ol  the  former,  with  the  total  value  of  tlie  lands  and  the  ag- 
gregote  po|)ulation  of  the  immense  regions  of  either  of  tiie  latter 
kingdoms,  it  will  lie  at  once  discovered  that  there  is  no  compari- 
son between  the  projioi-tioiis  of  theao  two  subjects  and  that  of 
Uic  relative  wealth  of  tlKnte  nations.  If  a  like  parallel  be  run 
between  the  American  Hlatca,  it  will  furnish  a  similar  result* 
Let  Virginia  be  contrasted  with  MassuchuMtts,  Pennsylvania 


>  Th»  raknlK  N'a>.  21,  K.  51 ;  S  DtU.  R.  171.  ITS ;  1  TndMr'i  Bkek.  t'lHBm. 
App.  2M.  2S7  ;  3  Elliol'ii  DnhaUx.  aos  lo  310 ;  8  KlUof*  DeUMi,  SM  ;  3  Ankcr. 
Uwum,  4M  )  2  fMMn  DrtatM,  33S. 

■  •  Jouiiul  of  ConUiMtia  Oo^nM,  181,  198,  IH. 

•  Tha  rtdtnliit,  K#.  81. 


730 


coNSTiTtrnoN  OP  ms  mmo  gtatch.        [book  hl 


witli  CoDD«cticut,  Marj-laiKl  with  Virginia,  Rhode  Island  with 
Ohio,  and  the  disproportion  will  be  at  cmce  perceived.     Tlie 
wealth  of  neither  will  be  found  to  be  in  proportiou  to  nnmbersi 
or  the  value  of  lands. 

§  997.  The  truth  la  that  the  wealth  c^  nations  depends  Dpoa 
an  infinite  variety  of  catuca.  Sitnatitm,  soil,  climate;  the  tta* 
ture  of  Itie  productions:  the  nature  of  the  j^vernmenta;  the  gen* 
ius  of  the  citiiens;  the  degree  of  information  they  poaaess;  the 
state  of  conuneroe,  of  arts,  and  iaduatrr :  the  manners  and  habits 
of  the  people, —  the«e:,  and  many  other  circumstaucea,  too  com* 
plex,  minute,  and  adrcntilious  to  admit  uf  a  particular  enumer- 
ation, occasion  differvnces  hardly  conceivable  in  the  relatit« 
opulence  and  riches  of  difffrcnt  countries.  The  consequence  ia, 
that  there  can  be  no  common  measure  of  mitiunal  wealth;  and, 
of  course,  no  frenerul  rule  by  which  the  ability  of  a  State  to  pay 
taxes  can  be  determined.'  The  estimate,  however  hirly  or  de- 
liberately made,  is  open  to  many  errors  and  inecjualitiea,  which 
become  the  fruitful  source  of  discontents,  cuntruvcraies,  and  heart- 
burnings. These  are  sufTieient  in  thcmsc)T«8  to  shake  the  ftmnda- 
tions  uf  any  national  governmfnl,  when  no  comrooa  artificial  rale 
is  adopted  to  settle  permanently  the  apportiunment;  and  everjr- 
thini*  is  left  open  for  debate  as  often  as  a  direct  tsx  U  to  be  tin> 
posed.  Even  in  those  States  where  direct  taxes  are  convtaatly 
resorted  to,  every  new  raluation  or  apportionment  is  found,  prao- 
tieally,  to  be  attended  with  great  inconvenience  and  excitements. 
To  avoid  these  difGeullivs,  the  land  tax  inEnirland  is  annually  laid 
accorditt.g  to  a  valuation  made  in  the  rei^  of  William  the  Third 
(1692),  and  Bp|M>rtioned  amoa;;  the  coimtios  according  to  that 
%-aliuitiun.'  The  (ttoss  inequality  of  this  prooeeilinf:  cannot  be 
diagnisod ;  for  many  of  the  eotintles,  tbeo  comparatively  poor,  are 
DOW  enunuwuly  increased  in  wealth.  What  is  Torkshirv  or 
Lancashire  now,  with  it«  denae  manitfactnriniKpopuUlitHi,  <;(■»- 
pared  with  what  it  then  waa  ?  Bna  when  the  popiUatioa  of  eadi 
State  is  ascertained,  the  mode  by  which  the  aoadwment  shall  be 
laid  on  the  lands  in  the  State  is  a  subject  of  no  small  cmhamas- 
ment  It  would  be  proas  injustice  to  tax  eadi  honsc  or  ten  lu 
the  same  amount,  however  diflTereot  mar  be  tta  value,  or  howvvrr 
different  its  quality,  situation,  or  productivencsa.  And  in  eid< 
mating  the  alisolute  value,  so  much  is  aeceaaarily  matter  of  ofUH '. 
1  Tb  r«tealiM,  Vo.ai.  ■  1  Bbak.  Oas.  fU,  OX 


CB.  XIT.j 


POWmS  OP  COKGRBSB  —  TAXIB. 


781 


ion,  tiiat  different  judgftnents  may  and  will  arriT«  at  difForent 
re«ulU.  And  in  adjuatinK  the  comparativo  ruluos  in  different 
counties  or  towns,  now  ek-mcnta  of  disoord  uru  unavoidably  in- 
troduced.' In  abort,  it  may  bo  aHirmcd,  witboat  foar  of  contra- 
diction, that  Bome  artificial  rule  of  Bp)ioft  ionment  of  a  fixed 
naturu  is  indiapciuiabic  to  thv  public  rcpo«« ;  and,  considoring  the 
)>«.-culiar  situation  of  the  American  Stat^M,  and  especially  of  thfi 
aUvc  and  agricultural  States,  it  is  dilTicult  to  find  any  rule  of 
greater  equality  or  justice  than  that  which  the  Constitution  has 
adopted.  And  it  may  be  add«d  (what  was  indt-ed  foreseen),  that 
direct  taxes  uu  laud  will  not,  from  causes  sufficiently  aj)p3rcnt, 
be  resorted  to,  eicept  upon  extraordinary  occasions,  to  supply  n 
preesing  want.'  Tbe  history  of  ttw  govcmmeut  has  abiinduntly 
Mtablisbed  the  correctness  of  the  remark ;  for  in  a  period  of  forty 
jeora  Uiroc  direct  taxes  only  have  bocn  laid ;  and  those  only  with 
reference  to  the  itato  and  operations  of  war.  (a) 

$  itQH.  The  Constitution  having  in  another  clause  declared 
that  "  represcntatii.'es  and  direct  tax«»  shall  b«  apportioned  amanff 
thf  Kveral  Sutu»  within  this  Union  according  to  their  respocti ve 
numbers,"  and  Congress  having,  in  181^'  laid  a  direct  tax  on 
the  District  of  Colombia  (ac«ordii^  to  the  rule  of  opportioa- 
mcnt),  a  question  was  made,  whother  Congress  had  constitution- 
ally  a  rifHit  to  lay  such  a  tax,  the  District  not  being  one  of  the 
States;  and  it  was  nnanimously  decided  by  (he  Siiprcrac  Court, 
Uiat  Congress  had  such  a  ri^t*  It  was  further  held  that 
CongreM.  in  laying  a  direct  tax  npon  the  States,  was  not  con- 
stitutionally bound  to  extend  such  tax  to  the  District  or  the  Tcr* 
ritories  of  the  United  States;  but  that  it  was  a  mattor  for  their 
discretion.  When,  however,  a  direct  tax  ts  to  be  laid  on  tbe 
District  or  the  Tcrritoriea,  it  con  be  laid  only  by  the  rule  of  ap- 
portionment Th«  reasoning  by  which  thia  doctrine  is  main- 
tained will  be  moat  satisfactorily  seen  by  giving  it  in  the  very 
words  used  by  tho  court  on  that  occasion. 

>  Sm  tbe  ivmnfa  of  Hr.  Jniike  Pattcnoo,  (n  IlyttM  r.  trnllod  .Suto.  3  Dill.  171, 
178.  17». 

'  1  TW:k.  BiMk.  Omm.  Ap^  S3t.  2U,  uid  boIc  :  M.  1S«,  S»7 1  I IMJ.  H.  178, 
17«  i  F«UnlMt,  Ko.  21.  34  ;  3  BlMt*  Dok  SOS  I»  210l 

•  Act  of  «(1>  Fob.  1810,  th.  113. 

*  LoniifcbanHiKli  r.  Rbk*,  5  ^IV1i(«tMi*(  R.  SIT  i  Sngsut  «n  Centl.  Ls»,  ctu  SS, 
.  SM  i  1  KhI,  Uonun.  l«n.  IS.  i>.  3U. 

[a\  AnothM  mm  Ud  on  Dm  braking  onl  of  Uu  diH  *ar  la  IMl. 


782 


COKSTITCnox  OP  TBB  DKITED  STATES.  [boOE  m. 


§  999.  "TboeiKbth  iKCtlou  of  tbe  first  article  gWce  to  Con- 
greaa  'power  to  Uy  and  <M>l]ect  taxes,  duties,  impoets,  and  ex- 
cieeft,'  (ur  llic  pur|>u»i-it  thcrvinafter  meotioned.  llxis  graot  b 
Kcnvml,  wilhuut  limitation  u  to  (tlace.  It  conaeqaently  ex- 
tenihi  to  all  ploora  over  which  the  p>venuoeDt  oxtends.  If  this 
could  he  doubted,  the  doubt  in  removed  by  the  sulnoquent  words 
whtcl)  modify  the  grant  These  words  are,  'but  alt  duties,  iia- 
fmts,  and  excisca  shall  be  uniform  throughout  the  Cnited 
States.'  It  will  not  be  contended  that  tiie  modificatlou  uf  th« 
power  oxtflnds  to  places  to  which  the  power  ituelf  does  not  ex- 
tend. The  power,  then,  to  lay  and  collect  dutlt^  imptxtts,  and 
excises  may  he  exercised  and  muxt  be  exercised  throughout  the 
Uaitod  States.  Does  this  term  designate  the  whole,  or  any  par- 
ticular portion,  of  the  American  empire  ?  Certainly  this  ques- 
tion can  admit  of  but  one  answer.  It  in  the  name  given  to  our 
great  Republic,  which  is  composed  td  States  and  Territories. 
The  District  of  Columbia,  or  the  territory  west  of  the  Missfnirt, 
is  uoi  liMs  within  tbe  United  States  than  Uaryland  or  Pennsrl- 
vnnia;  aud  it  is  not  less  necossary,  on  the  principles  of  our  Con- 
stitution, that  uniformity  iu  the  imposition  of  impo«ta,  duties, 
and  excises  should  be  observed  in  the  one  than  in  the  other. 
Since,  then,  the  power  to  lay  and  collect  taxes,  which  inclndea 
direet  taxra,  is  obviously  coextenaire  with  the  power  to  lay  and 
collect  dulieii,  imposts,  and  excises,  and  since  the  latter  extends 
ihmu^Iiout  the  United  States,  it  follons  that  the  power  to  impose 
direct  taxes  also  extends  throughout  the  United  States. 

§  1000.  '*The  extent  of  tlic  f^nmt  being  oaccrlaincd,  how  for  is 
it  abridged  by  any  part  of  tlie  Constitution  ?  The  twentieth  sec- 
tion of  tJie  first  article  declares  tliut  'representatives  and  din<et 
taxes  shall  be  ap|)ortioned  ainuug  the  se^-eral  Slates  which  may 
bo  included  within  this  Union,  according  to  tJieir  respective 
nnrobors. ' 

§  lOOl.    "The  ohjoct  of  this  regulation  is,  we  think,  to  furnish 
a  standard  by  which  taxes  are  to  be  apjwrtioned,  not  to  exeni) 
from  their  operation  any  part  of  our  country.     Uad  the  inU'ntioa"' 
been  to  exempt  from  taxation  thone  who  are  not  represt-'ntjed  in 
Congress,  that  intention  would  have  been  expressed  in  direct 
terms.     The  power  having  bwen  expressly  granted,  the  e^-  —  ■   n , 
would  have  been  expressly  made.     But  a  limitation  can  - 
be  said  to  be  insinuated.     The  words  used  do  not  mean  that  di- 


CB.  XIT.J 


P0WEK8  or  CONOHBae  — TAXB. 


m 


rect  taxes  sha!!  be  impocted  nn  State*  only  which  are  repre«entcd. 
or  Bhall  be  apportioned  to  repreaentativea,  but  that  direct  taza- 
tioo,  in  itft  application  to  States,  shall  be  apportioned  to  nuni- 
Ix-ra.  Rcproflentation  is  not  made  the  foundation  of  taitatioti. 
If,  under  the  rnameration  of  a  represpntative  for  every  HO,(MO 
fiouls,  (me  8tato  haa  been  found  to  contain  59,000  and  anotlier 
60,000,  the  first  would  have  been  entitled  to  only  one  repre»enta- 
tiix!,  and  thv  last  to  twa  l^eir  taxes,  however,  would  not 
have  been  aa  one  to  two,  but  as  fifty-nine  to  sixty.  This  clause 
was  obriouBly  not  intended  to  create  any  exemption  from  taxa- 
tion, or  to  mahe  taxation  dependent  on  representation,  but  to 
furuinh  a  standard  for  the  apportionment  of  each  on  the  States. 

§  100*2.  "The  fourth  parai^'apb  of  the  ninth  section  of  the 
saino  article  will  next  be  considered.  It  is  in  tlicse  words:  'No 
capitation,  or  other  direct  tax,  shull  be  laid,  unicss  in  pro|>ortioD 
to  the  census  or  enumeration  hcrcinlieforc  directed  to  be  taken.' 

§  1003.  "The  census  rcfcmMl  to  is  in  that  clause  of  the  Con- 
stitution which  has  just  been  considered,  which  makes  uumbem 
the  standard  by  which  both  repro«cntatiT-i?«  and  direct  taxes  shall 
be  apportioned  amon^  the  HtatcA  The  actual  enumeration  is  to 
bo  made  'within  three  yeurs  after  the  first  meeting  uf  the  Con- 
gress of  the  tr oiled  ytates,  and  within  every  subsequent  term  o( 
ten  years,  in  snch  manner  as  they  sliall  by  law  direct. ' 

§  1004.  "*  As  the  direct  and  declared  object  of  this  census  is 
to  furnish  a  standard  by  which  *rcpreseutativeii  and  direct  taxes 
mny  be  ap[Kirti<>iK-d  nmong  the  several  States  which  may  i>e  in- 
cluded within  this  Union,-'  it  will  be  admitted  that  (he  omission 
to  extend  it  to  the  District  or  the  Territories  would  not  render  it 
dvfoclitT.  The  census  referred  to  is  admitted  to  l>e  a  census  ex- 
hibiting the  numbers  of  the  respective  States.  It  cannot,  hov- 
erer,  be  admitted  thut  the  argument  which  limits  the  application 
of  tlie  power  of  direct  taxation  to  the  population  contained  in  this 
census  is  a  just  one.  The  language  of  the  clause  does  not  imply 
this  restricttoiL  It  is  not,  that  *no  capitatioD  or  other  direct 
tax  shall  be  laid,  unless  on  those  comprehended  within  the  cen- 
sus hereinbefore  directed  to  be  taken,'  but  ^unless  in  proportion 
to'  that  census.  Now,  this  proportion  may  be  applied  to  the 
District  op  the  Territories,  If  the  enumeration  be  taken  of  the 
population  in  the  liistrict  and  the  Territories  on  the  same  prin- 
ciples on  which  the  enumeration  of  the  respective  States  is  madet 


784 


COKliTlTDTION   OP  TUB  UKtTHIl  STATES.  [itiMK  ni- 


thcin  the  information  ia  ac(|aired  by  which  a  direct  tax  may  be 
impoAod  on  tho  District  and  Ttirritories,  *■  in  proportion  to~  the 
MnsiM  or  enumeratiun '  which  the  Ounstitution  directs  to  be 
taken. 

$  1005.  "The  standard,  th«n,  by  which  direct  taxes  most  be 
laid  ifl  applicable  to  this  District,  and  will  coublc  CoiisrfBs  to 
apiwrtion  on  ita  just  and  eqnul  aharc  of  thi;  burden  vith  tiio 
same  accuracy  a«  on  the  ruspectivo  8tatv«.  11  the  tax  be  laid 
In  this  proportion,  it  la  witliin  tho  rery  worda  of  th«  mtrir- 
tjon.  It  is  a  tax  in  proportion  to  the  ceoatis  or  eaunwralJoa 
pcffrred  to. 

§  1000.  '^  But  tbo  argument  is  presented  in  another  form,  in 
whii':h  its  refutation  is  more  difficult  It  is  urged  against  this 
confllruetion,  that  it  would  produce  the  necessity  of  extending 
direct  taxation  to  the  Dintrict  and  Territoriea,  which  wonld  not 
only  be  inconvenient,  but  contrary  to  the  understanding  and 
practice  of  the  whole  goremment  If  the  power  of  imposing 
direct  taxes  be  coextensive  with  the  United  States,  then  it  is 
contended  that  Ihe  restricti^-e  clause,  if  applicable  to  the  Dis- 
trict and  TcrritoriM,  requires  that  the  tax  should  be  extended  to 
them,  since  to  omit  them  would  be  to  violate  the  rule  ol 
proportion. 

§  lOOT.  "We  thin):  a  satisfactory  answer  to  this  argument 
may  bo  drawn  from  a  fair  comparative  view  of  tho  different 
clauses  of  tho  Constit-ution  which  have  l)ecn  recited. 

§  10O8.  "  That  the  (jncucral  grant  of  power  to  lay  and  collect 
taxes  is  made  in  terms  which  comprehend  the  District  and  Dm 
Territories,  as  well  as  the  Slates,  is,  we  think,  incmiirovertibli 
Tim  subsequent  clauses  arc  intended  to  regulate  the  exercise 
this  power,  not  to  withdraw  from  it  any  portion  of  the  commun- 
ity.  Tlie  words  in  which  those  claunca  arc  exprewied  intpor 
this  intention.  In  thus  rct^uUtio"  ita  exercise,  a  rule  is  given^ 
in  tiie  second  section  of  the  first  article  for  its  application  to 
the  respective  States.  Tliat  rule  declares  how  direct  taxes  iipam 
the  States  shall  ))e  imposed.  They  ahull  be  apportioucd  upon 
the  sevenl  States  according  to  their  numbers.  If,  then,  a  di- 
rect tax  be  laid  at  all,  it  must  be  laid  on  ever}'  State,  couformu- 

bly   to  the  mie  provided    in   the  Constitution.     T- '    t 

clearly  no  power  to  exempt  ony  State  from  its  due 

burden.     But  this  regulation  is  expressly  confined  to  ilie  Sialo, 


CB.  ur.] 


POWERS  OP  COHGBB86— TAXlBb 


785 


Kid  creatM  no  nMeuity  for  extending  (be  Ux  to  tho  District  or 
the  l*errttorie8.  The  words  of  tlie  iiintli  section  do  not  in  terms 
require  tliat  tho  H.ratem  of  direct  taxation,  when  resoried  to,  shall 
be  extended  to  the  Territories,  M  the  word*  of  the  second  seeliuti 
require  that  it  nhall  be  extended  to  all  the  States.  I'hey  there- 
fore may,  vitJiotit  %-iolence,  be  understood  to  give  a  rule  when 
the  TcrritorU*  shall  l>e  taxed,  without  imponini;  the  necessity  of 
taxing  Ihom.  It  could  scarcely  escape  the  membcra  of  the  con> 
vcnttuo  that  the  expense  of  execatlng  the  lav  in  a  Territory 
might  exceed  tho  amount  of  the  tax.  But,  be  this  aa  it  may,  the 
doubt  created  by  the  wonlB  of  the  ninth  section  relates  to  the 
obli^nttion  to  apportion  a  direct  tax  on  the  Territories,  as  well 
08  the  HtatcA.  rather  than  to  the  power  to  do  sa 

§  1009.  "  If,  then,  the  language  of  the  ConAtitution  bo  con- 
■bued  to  comprehend  the  Territories  anil  I>iMriet  of  Columbia 
aa  well  aa  tho  Statea,  that  langiuise  confers  on  Congress  tho 
power  of  taxing  the  District  and  Territories  as  well  as  the  Htatca. 
If  tho  genera)  language  of  the  Constitution  should  be  conlined 
to  the  States,  still,  the  sixteenth  parafrraph  of  tlie  ciglith  sec- 
tion  gives  to  Congress  the  power  of  exen;ising  'exclusive  legisla- 
tion in  all  eases  whatsooTer  within  this  District.' 

§  IDIO.  "On  the  extent  of  these  terms,  according  to  the  com- 
mon undemtanding  of  mankind,  tliere  can  be  no  dilTcrcnoe  of 
opinion;  but  it  is  contended  that  they  most  be  limited  by  that 
great  principle  which  was  asserted  in  oar  revolution,  tliat  rep- 
resentation is  inseparable  from  taxation.  The  difTi'reniN>  be- 
tween requiring  a  coatinent,  with  an  JrameniM-  population,  to 
submit  to  bo  taxed  by  a  government  haring  no  common  interest 
with  it,  He[wriit«-d  from  it  by  a  raat  ocean,  restrained  by  no 
principle  of  Hp{Kirlionment,  and  associated  with  it  by  no  com- 
mon feelings,  and  permitting  the  repnwentati<>'es  of  the  American 
people,  under  the  rrvtrictions  of  oor  Constitution,  to  tax  a  part 
of  the  societj'  which  ia  either  in  a  state  of  infancy  advancing  to 
manhood,  looking  forward  to  complete  equality  as  soon  as  that 
state  of  manhood  shall  bo  attained,  as  is  the  case  with  the  Terri- 
tories, or  which  has  voluntarily  relinquished  tlio  right  of  repra* 
sontation,  and  has  adopted  the  whole  body  of  Congrejts  for  Its 
legitimate  government,  as  is  the  case  with  the  District,  is  too 
obvions  not  to  present  itself  to  the  minds  of  all.  Although  in 
theory  it  might  be  more  congenial  to  the  spirit  of  our  instltu- 


786 


ooKSTrnmox  op  thb  dkitbd  stated        [book  in. 


tioiw  to  admit  a  rcprcucntative  from  the  DiBtrict,  it  njay  be 
doubted  wh«t]ior,  iu  fact,  its  interests  would  be  rondcrcd  tltcrcbv 
the  morv  Hccurc;  oud  certainly  the  CoiiittitDtioit  cloc«  not  con- 
sider it«  waiit  of  a  repreeeutatiTc  in  Congress  as  exempting  it 
from  equal  taxation. 

§  1011.  "If  it  were  true  that,  according  to  the  spirit  of  our 
Constitution,  the  power  of  taxation  muat  be  limited  by  the  right 
of  representation,  whence  is  deri\-vd  tlie  ri^ht  to  lay  and  onllect 
dutiea,  impoHts,  and  excises  witliiu  this  District?  U  the  princi- 
ples of  lilierty  and  of  our  Constitution  forbid  the  raisinjr  of 
revenue  from  those  who  are  not  rcpnwenled,  do  not  these  princi- 
ples forbid  the  raising;  it  by  duties,  imposts,  and  excise*,  us  vrll 
OS  by  a  direct  tax  ?  If  the  principles  of  otir  revolulioo  gi^'e  a 
rule  applicable  to  this  cn^c,  wo  cannot  liarc  for^tteu  Uiat  neither 
the  stamp  act  uor  the  duty  on  tea  were  direct  taxes.  Yet  it  is 
admitted  that  the  Constitution  not  only  allows,  but  cnjoina, 
Uic  government  to  extend  the  ordinary  revenue  system  to  this 
District 

§  1012.  "If  it  tie  said  that  the  principle  of  oniformity  estab- 
lished in  the  Constitution  secures  the  District  from  oppresaion 
in  the  imposition  of  indirect  taxes,  it  is  not  leaa  tme  that  the 
principle  of  apportionment,  also  established  in  tlio  Constituticm, 
Bccures  the  District  from  any  oppressive  excrciso  of  the  power  to 
lay  and  collect  direct  taxes. " 

§  1013.  The  next  clause  in  the  Constitution  is:  "No  tax  or 
dnty  shall  be  laid  on  articles  exported  from  any  State,  {a)  Ha 
preference  shall  be  given  by  any  regitlntion  of  commerce  m-  reve- 
n«n  to  the  porta  of  one  State  over  those  of  another  j  (ft)  nor  shall 
Teasels  bound  to  or  from  one  iit&ie  be  obliged  to  enter,  clear, 
or  pay  duties  in  another." 

§  1014.  Tlie  obvious  object  of  these  provisiona  in  to  prevent 
any  poasibility  of  applying  the  power  to  lay  tasea,  or  reguial 
commerce,  injarioualy  to  the  interests  of  any  one  State,  «o 
to  favor  or  aid  another.  If  Congress  were  allowed  to  lay  a  duty 
on  exports  from  any  one  State,  it  miiilit  unrcaEonably  injure, 
even  destroy,  the  staple  productions  or  common  articlca  of  thn 


{a}  See  IWpta  ■.  Bai^Mi,  117  V.  S. 
SM  i  Fmw  t.  BuigBH,  »  V.  S.  373 ;  Co* 
a.  Eml,  list'.  8.  SIT. 

(»}  8m  Gay  n  BdHnMm,  100  C.  S. 


4»  i  Wsodniff  «.  Ftabm,  8  Will.  ISt  i 
Bimoo  IT.  Loll,  8  WJI.  Its  ;  W«nl  •! 
Uuj]Md,  \i  W>U.  118  :  Wtlt«ii  *.  M» 
wari,  tl  C.  8.  STS. 


oa.  xiT.] 


COMQBISS  —  TAZES. 


m 


I 
I 
I 
I 


Stata'  The  ioequalit;  at  such  a  tax  would  Iw  extreme.  In 
tome  of  the  States  the  whole  of  their  means  ruiult  from  aic^calt- 
nral  exports.  In  others,  a  great  portion  is  dtirivod  from  otb«r 
sources;  from  cxtcrual  TisheriGs,  from  freights,  aod  from  th« 
profits  of  comiQCrcu  in  its  largest  extent.  The  biirdeD  of  such 
a  tax  would,  of  course,  be  rerj'  unoqually  distributed.  The 
power  is,  therefore,  wholly  taken  away  to  intermeddle  with  the 
subject  of  exports.  On  tlio  other  hand,  prefercncen  might  be 
given  U>  ihe  ports  of  one  Slate,  bjr  ref^lations  either  of  commerce 
or  revenue,  which  might  confer  on  them  loeal  faeilities  or  privi- 
legos  in  regard  to  couimeree  or  revenue.  And  such  preferences 
might  be  equally  fatal,  if  indirectly  given  under  the  milder  form 
of  rcquiriag  an  entri*,  clearanee,  or  payment  of  duties,  in  the 
ports  of  any  8tat«  other  than  the  porta  of  the  State  to  or  from 
which  the  vessel  was  bound.  The  last  clause,  therefore,  does 
not  prohibit  Coni;rc8s  from  requiring  an  entry  or  clcaranoe  or 
payment  of  duties,  at  the  custom-house,  on  importations  in  any 
port  of  a  State  to  or  from  which  the  vessel  is  bound ;  but  cuts  off 
tbo  right  to  require  such  acts  to  bo  done  in  otlter  States  to  which 
the  veaeol  Is  not  bound.*  In  other  worda,  it  cuU  off  the  ]>ower 
to  require  that  circtiity  of  voyage  which,  under  the  British  colo- 
nial system,  waa  employed  to  interrupt  the  American  commerce 
before  the  Bevolution.  Xo  American  vessel  could  tla-n  trade 
with  Europe  unless  through  a  circuitous  roy^e  to  and  from  a 
British  port'(a) 

§  1015.  The  first  part  of  tlie  clause  wa»  reported  io  tlte  first 
draft  of  the  Constitution.  But  it  did  not  pnss  without  oppoei- 
ticm,  and  several  attempts  wore  made  to  amend  it,  as  by  inserting 
after  the  word  " duty  "  tho  words  "for  the  purpose  of  revenue," 
and  by  inserting  nt  the  end  of  it  "nnless  by  con»ent  of  two-thirds 
erf  tho  legislature,"  both  of  which  propoeilions  were  negatu-ed.* 
It  then  passed  by  a  vote  of  seven  States  against  four.*    Subse- 


■  8a«I«  m  Um  COMtiudoa,  ch.  10,  pp.  11B,  116. 

■  Joiirn.  of  CoBVfntlM,  293,  S01 ;  8«rB*ut  on  CdmL  Law,  eh.  3S,  p.  SM  ;  Unittd 
Stttw  (■  Brig  WfllUm,  8  flitl't  Uw  Joani.  SS5,  1S9,  SSO  ;  Ihwh  on  Uia  Conat  <k. 
in,  Pl  114  :  1  ittknam't  Corinji.  101  to  IM.  111. 

>  BwTM  c*  ShlppioK,  pp.  28.  S8,  IT,  «9.  113  to  105 :  1t1.  m.  <»S.  «93  ;  Burica'l 
8|w«ch  on  AaMricra  Tutflon.  is  1771 :  I  Pltk.  HmL  «lt.  1,  pp.  »I  to  104.  (») 

1>  J<mm.  or  CMTanUon,  S32,  £79.  *  M.  STB,  XT*. 

(■ 
110. 


(a)  Sm  Aftiim  •.  Uuwdl,  S  BUldi. 
110. 

TOt,  I.  —  IT 


(0  8m  Uorgu't  B.  Co.  B.  f  ml^M. 
ItStJ.&IM. 


TS8 


oosamvTios  or  the  pnitbo  states.        [book  m. 


quentty  Uic  rcmaioiDg  parts  of  th«  clamo  wcr«  proposod  by  irport ' 
of  a  eommittoc,  and  th«y  «ppeu-  to  have  bocn  aUopUsd  witiioat 
objection.'  Upon  tlie  whole,  the  wisdom  aii<l  Kmind  policy  o£ 
this  restriction  caonot  admit  of  reasooaUle  doubt;  iiot  m>  much 
that  th«  powers  of  lh«  general  government  were  likcl;  %o  be 
sbnaed,  ns  that  the  constitutional  prohibition  would  alUj  jeaI-> 
Olisiesand  conrimiconfidoncc.'  The  prohibition  extends  DOtonlj 
to  expnrta,  but  to  the  exporter.  Congress  can  no  more  right* 
fully  tax  the  one  than  the  other.* 

§  1016.  The  next  clause  contains  a  prohibition  on  the  States 
for  the  like  objects  and  purposes.  "No  State  shall,  vitiotU  tig 
consent «{/'  Coit^res*,  lay  any  imposts  or  duties  on  imfwrts  or  ex- 
ports, except  what  may  be  absolutely  necessary  for  executinj;  ita 
inspcctiun  laws;  and  the  net  produoe  uf  all  dutivs  and  imposts 
laid  by  any  Stat«  on  imports  and  exports  shall  bo  for  the  use 
of  the  treasury  of  the  Uuitvd  States;  and  all  such  laws  shall  l« 
subject  to  tlic  revision  and  control  of  Congress.  No  State  shall, 
without  the  consent  of  Congress,  lay  any  boooage  duty."(>i)  Id 
the  first  draft  of  the  Constitution  the  clause  stood,  "  No  States 
without  the  consent,"  etc,  "shall  lay  imposts  or  dutii^  on  im- 
ports." I1ie  clause  was  then  amended  by  adding  "or  exports," 
not,  bowcrer,  without  opposition, — six  Status  voting  in  the 
offinnatire,  and  five  in  the  ut^ive;*  and  again,  by  adding 

>  Jonnu  «f  CoovMtiaa,  SU.  SIS ;  U.  STT,  878. 

>  I  Tuck.  BIuIl  Comm.  Apfi.  SS>  3SS  ;  Id.  29«. 

*  Brown  r.  IbiyUod.  13  Wbnt.  K.  «». 

•  Jtnira.  of  Con*«atioD,  SS7,  303. 


(a)  Sm  Maigan  StcanuhipCfl.  v.  L<ra»- 
bat,  lis  V.  i.  4G3  :  Hum  n  Olovcr,  110 
U.  &  S4S :  Keokuk  Pwkpl  Co.  *.  K»>- 
kok,  M  V.  B.  80  :  Trmniportxtiaa  Co.  r 
Pwk«nb<u»  lo;  U.  SL  891 1  WkMlisg 
TnmporMUui  Co.  r.  Vr'hMling^  S8  U.  8. 
273  i  Kortk^nteni  PMkat  Co.  ».  Bt. 
Lmii,  IW  V.  S.  its  :  Vkkitarg  o.  ToUn. 
ik  430;  SUt(  Tonnigc  Tu  Cuo,  IS 
U'lll.  304,  !3) ;  r<ot>  •.  Ma(]{M.  10  Wall. 
581  i  Cannon  c.  Nmr  Orlaat,  30  VtO. 
571 ;  Inniku  fiMBiUp  Co.  p.  Tinker,  04 
U.  8.  138 :  StcnMuM(>  Co.  *.  WanUm^  * 
Wall.  St.  Tiia  Uricd  spoa  nttit 
owmi  hf  \ht  citiumanf  the  Suto  a*  !*»■ 
party,  bued  m  th«ir  vtlot  m  vnprttj, 
m  t.  f.  OK  llirir  tcoMgc,  an  not  viiUs 


lbs  ootutltiitle«4l  pnnitlnc.  WbMting 
Tmi>{>«rUt£sa  Co.  «.  WbwUng,  tm^n ; 
Kmlnk  PtekM  Co.  f.  KcohMk,  mpra. 
Hie  ptoridM  itoM  not  mtma  thai  tW 
owatn  of  wliam*  in  Mrl^Mc  vab>n  anr 
not  ilpmnii  pay  for  th*  nv  n''  llw  mm*. 
Nortbvnteni  hdtet  Co.  p.  Bi.  Itmk, 
ntpm.  Tht  (tiatinetioa  la  buauui  nnmd 
To*  tfM  ue  of  firoferty  ani!  paynvBt  lor 
tha  fiirlkp  of  rntcriiiB,  rr— ialn||  tx,  at 
il«putin|i  froM  a  port.  tli. ;  VkkabnK 
r.  ToUn,  twpriL  "  Vhtttf^  "  ounaL  )■ 
demandnl  for  the  ua»  of  lh>  tiEdni|iri>n4 
■liarc  Ik  FnnbfT  m  to  the  ipnetml  m^ 
>ct,  Bt  1  Hart,  Ak.  ConA  La«.  XSS, 
3SL 


CB,  IIT.] 


P0WEB8  OP  00KGBK88  —  TAXKS. 


739 


"nor  with  Bach  ooiusent,  but  for  the  use  of  the  treaaurj  of  thfl 
Unit<>d  ^^tates,"  bj  a  vote  of  ntiiu  States  a^inst  twa'  In  the 
revised  draft  the  ctau8«  was  reported  as  thus  amended.  The 
clnose  vat)  then  altered  to  its  present  shape  br  a  votv  of  ten 
SCat«8  Bi^inst  one ;  nnd  tlie  clause  which  n.'»{iei.'ts  the  duty  on 
tonnage  was  then  added  hf  a  rote  of  six  Htales  against  four,  one 
bein^  <iiTided.'  So  that  it  »wms  that  a  struggle  for  State  pow- 
ers w».<  roni«lanllf  maintain^,  with  zeal  and  pertinacity,  through- 
out tlie  whole  dittcussion.  If  there  ia  wisdom  and  sound  policy 
in  restraining  the  United  States  from  eserciaing  the  power  of 
taxation  unequally  in  the  States,  there  is,  at  least,  et^nal  wis- 
dom and  policy  in  restrainioK  the  States  themselves  from  the 
exercise  of  the  same  power  injuriously  to  the  interests  of  each 
other.  A  petty  warfare  of  regulation  is  thus  prevented,  which 
would  rouse  resentments  and  create  disscnsiotis,  to  the  niin  of 
the  hamioiiy  and  amity  of  the  States.  The  power  to  enforce 
their  iiispeetion  laws  is  still  retained,  subject  to  the  revision  and 
control  of  Congres* ;  so  that  anfheicnt  provision  is  made  for  the 
oonvenient  arrangement  of  their  domestic  and  internal  trade, 
whenever  it  is  not  injurious  to  tlio  general  interests.' 

§  1017.  Insjiection  taws  arc  not,  strictly  8|H'nking.  regula- 
tions of  commerce,  thougli  they  may  have  a  remote  and  considera- 
ble influence  on  commerce,  (a)  The  ol>ject  of  inspection  laws  Is 
to  intproTO  the  quality  of  articles  produced  by  the  labor  of  a 
oountr}',  to  fit  them  for  exportation  or  for  domestic  use.  These 
laws  act  upon  the  subject  before  it  becomes  an  article  of  C(nn- 

*  Joam.  c(  Conreali(iii,303,  SM. 

*  Joum.  of  CeDventko.  U«i  SSI\  SSI.     See  2  AaMrioa  Hownm.  »t :  Id.  SM. 

*  Tb*  I'fJmllM.Ko.  It:  1  Tuck.  BUck. f;oinm.  App.  ISl,  318.  &«al«ol  EUtofi 
DtUCo^  3S1  lu  356  ;  Joam.  of  Coavralten,  2M,  S95. 

tioe  HariM,  for  IW  onrt,  Mjrt  t  •■  A  hw 


(a)  S«e  ToiMT  9.  MMfhnA.  107  V.  8. 
SSi  KMl>w*.Gara.SW<Mb,te7tN«w 
T«rk  p.  C<anpttcai<!  Qi»ifU.  107  V.  S.  G9; 
UdiiIm'*.  Ruiim.  13Str.8.<SS:  uia  mh 
npfciall^  MinnmtH  r.  BtfliOT,  130  V.  3. 
S13.  on  the  diilinrtioa  brtman  in^Mctian 
Uir*rnp>U<>nffnranierrc.  On  that  duttnc- 
tliw  M«  *Im  itta*ni*l>i|i  f'n.  v.  IVrt  Wu- 
>Un«^  «  Wall.  SI  :  Yaum  r.  Ko*  Orbans 
it  17.  S.  U«  I  GilDiui  r.  PIiitMi'lplib,  S 
WiIL  TIS:  Sr  parit  HcNmI.  13  W>1L 
134 ;  Pditenon  e.  Ktvttitkj.  67  V.  S.  Ml. 
In  MtaamaU  d.  B*ik<r,  ttfta,  Ur.  Jut- 


for  th»  Inipactiim  of  uiimab  «l»o«e  mcato 
u«  dcalf^nvd  r«r  liuinaa  (txd  cannot  be  (•• 
gsrfpd  ai  a  ffghtful  ratitton  of  tb*  |n||c* 
{xnrtn  of  tlu  Stale,  it  th«  IniptcUoB 
pnambpl  la  of  tneh  a  dsTKtoT,  or  h 
Imnknol  whh  nuoti  foadiUoiu^  a*  will 
prercat  altcgcthrr  lh«  lotnKlartkai  Inl4 
lb*  Stale  «r  aoand  mtali,  the  pmloct  oT 
antNMli  tU>ghl«mi  kii  othei  Suto." 
The  motifs  of  tli*  li^tlitain  are  Inn*- 
tcrial.  tb.  ]  Soon  Uittg  *.  Crawl*;,  113 
U.8.7l)S. 


740 


CON.1TtTUnON  OP  THR  DKITHD  9IATE3.  [bOOE  III. 


inerce,  foreign  or  domefltic,  and  prepare  it  fgr  the  purpose.  They 
form  a  portion  of  that  iminen»e  mass  of  le^alatioa  which  em- 
braces eTerj'tliing  in  the  territory  of  a  f^tate  not  surrendered  to 
the  general  goTemmeDt.  Inspection  lawn,  (|uarantine  laws,  and 
health  lawa,  as  veil  aa  laws  for  regulating  the  internal  comaieroe 
of  a  State,  and  others  which  respect  niadft,  fences^  etc.,  ai«  com- 
ponent parts  of  State  legislation,  reaultinjr  from  the  rcsidiuur 
powers  of  State  sovereignty.  No  direct  power  over  tht-ac  is  given 
to  Gongreaa,  and  consequently  they  remain  subject  to  State  Icgia- 
tatiott,  though  tlioy  may  l>e  controlled  by  Coo^tcm  when  Ibey 
interfere  with  their  acknowledged  powers. '(«)  Under  tiie  ooo- 
fodcration  there  was  a  provision  that  "no  State  shall  lay  any  im- 
posts or  duties  which  may  intorfero  wLUi  any  stipuUtiooa  of 
twMios  entered  into  by  tlio  ITnited  States,"  etc  Thin  pro- 
hibition was  notoriously  (as  has  been  already  stated)  disregarded 
by  the  States;  and,  in  the  cxerciHO  by  the  States  of  their  general 
authority  to  lav  imposts  and  dulies,  it  is  equally  notorious  Uiat 
the  moat  misohierous  restraints,  preferences,  and  inequalities 
existed ;  so  that  very  serious  irritations  and  feuds  were  eonstantly 
generated,  which  ihruntened  the  peaco  of  tlie  Union,  and,  indeed, 
must  have  inevitably  led  to  s  dissolution  <d  tt*  The  power  to 
lay  duties  and  imposts  on  imports  and  exports,  and  to  lay  a  too- 
nage  duty,  is  doubtless  properly  coimidercd  a  ]mrt  of  the  taxing 
power,  but  it  may  also  be  applied  as  a  regulation  of  commerce' 

I  1018,  Until  a  recent  i>criod  nodlfTtculty  occurred  in  regard 
to  the  prohibitions  of  tiiis  clause  Congress,  with  a  juat  liber- 
ality, gave  full  efTect  to  the  inspection  laws  of  the  States,  and 
required  them  to  bo  obserred  by  the  revenue  officers  of  the  United 
Statea.*  In  the  year  1821,  the  State  of  Ifaryland  psissod  an  act 
requiring  that  all  importers  of  foreign  articles  or  commoditica, 
etc,  by  bale  or  packnjjre,  or  of  wine,  ram,  etc.,  and  other 
persons  selling  the  same  by  wholesale,  bale,  or  package,  hogs- 
head, barrel,  or  tierce,  should,  before  they  were  authorized  tn 


t  OtbbOM  •.  OxiUb.  9  Wh«>t.  R.  1,  «*  to  «M,  SIO,  aU,  SM,  311 )  Bmn  *.  Uuj- 
U^  IS  WImM.  B.  4lt>,  4SS,  49»,  MO. 
■  Th*  FaknUtt,  Nml  T,  SI. 

*  OlbtiMM  a.  0«^  B  WbMt.  B.  1,  IM,  200b  Ml ;  BronK  Uir;biid.  ISW^ml 
R.  ««,  HI. 

*  Act  cf  M  ApriL  17M.  oh.  B;  Act«f  U  Hucl^  1»B,  oh.  12>,  }  » 

(a)  Rtt  Tnraar  k.  Mujlud,  Hyps, 


CH.  nv.] 


POWEBS  OP  COKOBBSS — TAXES. 


741 


Bell,  take  out  a  license,  for  which  the^  were  to  pay  _^ty  dollora, 
under  certain  penalties.  Upon  tliie  act  a  question  arow  wbi'ther 
it  was  or  not  a  violation  of  th«  ConMitulion  of  llie  Uiiit^d  States, 
and  capeciully  uf  the  proliibitory  clauite  now  under  oondidera- 
tiun.  Upc)u  Holcmn  argument,  the  Supreme  Court  decided  that 
tt  was.*  The  judfcntent  of  tlie  Supreme  Court,  deli^xrod  on  that 
occasion,  oontaiiu  a  Tery  full  exposition  of  the  whole  tiuttject; 
and  although  it  is  long,  it  »eem»  diflicult  to  abridge  it  withovt 
marring:  the  reaxoning,  or  in  aome  measure  leaving  imperfect  a 
moat  important  constitutional  inquiry.  It  is,  tlierefore,  inserted 
at  lai^ 

5  1019.  "The  cause  depends  entirely  on  the  qnestion  whether 
the  legislature  of  a  State  can  constitutionally  require  the  im- 
porter of  foreign  articles  to  take  out  a  license  from  the  State  be- 
fore he  shall  be  permitted  to  sell  a  bale  or  package  so  imported. 
It  has  Ifeen  truly  Buid  Uiat  the  prcHiuuption  is  in  favor  of  every 
leKislativc  act,  and  that  tho  whole  burden  of  pn>of  lies  on  Ihoee 
who  deny  its  constitutionality.  The  plaintiffs  in  error  take  the 
burden  on  themselves,  and  insist  that  the  act  luidcr  considera- 
tion is  repugnant  to  two  provisiuits  in  the  Constitution  of  the 
United  States.  (1)  To  that  which  declarer  that  'no  State  shall, 
without  the  consent  of  Cougress,  lay  any  imposts  or  duties  on 
imports  or  exports,  cxeept  what  may  be  absolulety  neecssnry  for 
execnting  its  inspection  laws.'  (2)  To  that  which  declares  that 
Congreaa  shall  have  power  '  to  regulate  ccnnmerce  with  foreign 
nations,  and  among  the  soveml  States,  and  with  the  Indian 
tribes.' 

$  1020.  **  1.  The  first  inquiry  is  into  the  extent  of  the  prohi- 
bition upon  States  *to  lay  any  imposts  or  duties  on  imports  or 
exports.'  Tlie  counsel  for  the  State  of  Maryliind  would  confine 
this  proliibition  to  laws  impnaing  duties  on  tlie  act  of  importa- 
tion or  exportation.  The  counsel  for  the  plaintiffi^  in  errx^r  giro 
tlicm  a  ranch  wider  scope.  In  [lerforming  Uie  delicate  and  im- 
portant duty  of  construing  clauses  in  the  Constitution  of  oar 
eoimtry  whirh  involve  conflicting  powers  of  the  government  ol 
the  Hnion  and  of  the  respective  States,  it  is  projier  to  take  a  view 
of  the  literal  meaning  of  the  words  to  bo  expounded,  of  their 
connection  with  otht-r  words,  and  of  the  grneral  objects  to  be 
aooomplishcd  by  tho  prohibitory  clause  or  by  the  grant  of  power. 

>  BRi«iiKll«rrlud,1SWhMLB.Il»;Tlwr<*laaU(t,So.sn. 


742 


coNatiTirnox  of  the  dnited  states.         [book  i«. 


What,  thea,  is  the  meaning  of  tbe  words  'imposts  or  duties  on 
io^Mrts  or  exports  *  t  An  impost  or  daty  on  imports  is  a  custom 
or  a  tax  leviwl  on  articles  brought  into  a  countrj-,  and  is  most 
usually  etcured  before  the  importer  is  allowi^  to  exercitw  his 
rights  of  ownership  over  them,  l>evaus«  evasions  of  the  taw  can 
be  prevvnted  more  certainl)-  by  executing  it  while  the  articles 
sre  in  its  custody.  It  would  not,  liowuvcr,  be  less  an  impost  or 
duty  on  tho  artick-s  if  it  were  to  be  levied  oq  them  after  they  were 
landed.  The  policy  and  eomiiH|ui.'ut  practice  of  levying  or  secur- 
ing tlie  duty  beforo  or  ou  entering  the  port  does  not  limit  the 
power  to  tliat  state  of  things,  nor,  coiuiequently,  the  prohibition, 
miloBS  the  true  meaning  of  tLe  clause  so  conlines  iL  What, 
then,  are  'imports'?  Tbe  lexicons  inform  us  that  thejr  are 
'  things  imported.  *  U  we  appeal  to  usage  for  the  meunii^  uf  the 
word,  we  ^all  receive  the  some  answer.  They  are  tho  article* 
themselves  which  arc  brought  into  the  country.  *A  duty  uo  im- 
ports,' then,  is  not  mei-ely  a  duty  on  the  act  of  importation,  but 
is  a  duty  on  the  thing  imported.  It  is  not,  taken  in  its  literal 
aease,  confined  to  a  duty  levied  while  the  article  is  entering  tlic 
country,  but  extends  to  a  duty  levied  after  it  has  entered  the  coim- 
trjr.  The  sucooeding  words  of  tlie  sentence  which  limit  tbe 
prohibition  »how  the  extoiit  in  which  it  was  understood.  Tho 
limitation  is,  'except  what  niny  be  at^Aolutely  necessary  for  exe- 
cuting its  inspection  laws,  '{a)  Now  tbe  inspection  laws,  so  far 
as  tltey  act  ujton  articIr-H  for  exportation,  are  generally  executed 
on  land  beforo  tJie  arlicle  is  put  on  board  the  vessel ;  so  far  as 
they  act  cm  importations  they  are  generally  executed  upon  arti- 
cles which  arc  landed.  The  tax  or  duty  of  inspectinn.  tlien,  is  a 
tax  which  is  frequently,  if  not  always,  paid  for  service  per- 
formed <m  land  while  the  article  ta  in  the  bosom  of  Qw  country. 
Yet  tliis  tux  is  an  exception  to  the  prohibition  on  the  States  to 
lay  duties  on  imports  or  exports.  The  exception  was  made  be- 
cause the  tax  would  otherwise  have  been  within  the  prohibition. 
If  it  be  a  rule  of  interpretation  to  which  all  assent,  that  tJio  ex- 
ception of  a  particular  thing  from  general  words  proves  that,  in 


(a)  Sm  Iciif  a  Oaidin,  US  tl.  S.  lOO 
(intodratl^  ll^Doni  InpMled  to  W  uU 

lb.  I«I  I  pot,  I IQSI,  noCn,    rurthm-  «m 
Tuner  r.  Stato.  SS  Ud.  240  j  Tmin  ». 


Hirjrlmd,   107  D.  ft  S8  i  Jvlum  Im 
Ov  bl   A>idiwr-fl««»»I,  32  Mt:!..   (J-S 
Brnnagim  v.  Tt1linit)i**><    )^  ^ 

Ouiiitm  w.  Tillmglinl,  IL  tOt ;    ,. 

ComL  Um.  ;91-;«6,  Ut,  fib  «!. 


CH.  XIV.]  POWEBS  or  C0NUBBS8  —  TaZU.  74S 

the  opinitH)  of  the  Uw^ver,  th«  thing  excepted  wwM  be  vithin 
the  gcnerol  claiuie  bad  the  exception  not  lieeo  made,  we  know 
no  reason  why  this  general  rule  should  not  )fe  as  ap))licable  to 
the  Constitution  as  to  other  inatnimeiita.  If  it  be  applicable, 
then  this  exception  in  t&vor  of  duties  for  the  HUpport  of  inspcc- 
tion  laws  goea  far  in  prorinj;  that  the  franters  of  tlie  Cnn«titutioD 
claas«d  taxea  of  a  iiimilar  character  with  those  impneed  for  the 
porposce  of  tuttpeoiiun  with  duties  on  iiuporta  and  cxporta,  and 
supposed  them  to  be  prohibited. 

§  1021.  "If  we  quit  this  yarrow  riow  of  the  subject  and,  pass- 
ing from  tlie  litvrul  iutcrprctatJon  of  the  words,  look  to  the  ob- 
jects of  tJie  prohibition,  ve  find  no  reason  for  withdrawing  the 
act  under  con«idenition  from  Its  operation.  Prom  thv  rant  in- 
equality bctw<.-en  tlie  dilTorcat  States  of  ttiu  coiifedcmcy  as  to 
commercial  advantages,  few  subjects  were  xHewcd  with  deeper 
in(on-«t  or  excited  more  irritation  than  the  manner  iu  which  the 
BcvL-ral  States  exercised,  or  seemed  die|>osed  to  exercise,  the 
power  of  laying  duties  on  imports.  From  motircs  whicb  wera 
deemed  sufficient  by  the  statesmen  of  that  day,  tliu  general  power 
t£  taxation,  indispensably  necessary  as  it  was,  and  jealous  as 
the  States  were  of  any  encroachment  on  it,  was  so  far  abridged 
as  to  forbid  them  to  touch  imports  or  exports,  with  the  single 
exception  which  has  t>ccn  noticed.  Why  are  tliey  restrained  from 
imposing  these  duties  ?  Plainly  because  iu  the  general  opinion 
the  interest  of  all  would  be  best  ppromoted  by  jdacing  (hat  whole 
subject  tmdcr  tlie  control  of  Congresa  Whetlier  tbe  prtdiibition 
to*  lay  imposts  or  duties  on  im]>ort8  or  exports'  proceeded  from 
an  apprehension  that  the  power  might  be  so  exercised  as  to  dis- 
turb that  e<{uality  among  the  States  which  was  generally  advan- 
tageous, or  tliat  harmony  between  them  which  it  waa  desirable  to 
preserve;  or  to  maintain  unimpaired  our  commercial  connections 
with  frtreijm  nationg;  or  to  confer  this  source  of  revenue  on  the 
government  of  the  Union;  or  whatever  other  motive  might  have 
induced  the  prohibition,  it  ia  plain  that  the  object  would  be  as 
completely  defeated  by  a  power  to  tax  the  article  in  the  hands  of 
the  imiMirtor,  the  instant  it  was  lauded,  oa  by  a  |M>wcr  to  tax  it 
while  entering  the  port.  There  is  no  difference,  in  effect,  tw- 
twecn  a  power  to  prohibit  the  sale  of  im  article  and  a  power  to 
prohibit  its  introduction  into  the  country.  The  one  would  tie  a 
necessary  consequence  of  the  otlior.    No  goods  would  be  imported 


744 


cossmvnoH  or  the  witwd  mates.         [bocs  m. 


if  none  ooald  be  sold.  No  object  of  nii^  description  can  be  u> 
oomplisbcd  by  lajing  a  duty  on  importatioD  which  may  not  be 
acoomplislied  with  equal  certainty  by  laying  a  duty  on  the  thing, 
imported  in  the  hands  of  the  importer.  It  is  obnoua  that  the 
saine  power  which  imposett  a  light  daty  can  impose  a  very  besvj 
one,  one  which  amounts  to  a  prohibition.  Questions  of  pow^r 
do  not  depend  on  the  degree  to  which  it  may  be  esercLsed.  If  it 
may  be  exercised  at  all,  it  must  be  exerciBod  at  the  will  of  tboM 
in  whose  hands  it  ia  placed.  If  the  tax  may  bo  Icried  in  thia 
form  by  a  State,  it  may  be  lened  to  an  extent  which  will  dtdeat 
the  revenue  by  im)K)et,  so  far  aa  it  is  drawn  from  importolioos 
into  the  particular  State. 

§  1022.  "We  are  told  that  such  a  wild  and  {rretjanat  afavM  ef 
power  \B  not  to  be  apprehended,  and  is  not  to  bo  taken  into  riew 
wh^i  diticu«sinf;  its  existence.  All  power  may  be  abtuHNl;  and 
if  the  fear  of  ite  abuse  is  to  constitute  an  argument  against  Its 
existence,  it  might  be  urged  againat  thu  existence  uf  thatwhkih 
is  univcnuilly  acknowlodgfd,  and  which  is  indispeosable  to  tbft 
genoral  ttafcty.  The  State's  will  never  be  so  msd  as  to  destroy 
their  own  commerce  or  even  to  lessen  it  We  do  not  dissent 
from  Uicse  general  propositionB.  We  do  not  suppose  any  State 
would  act  so  unwisely.  But  we  do  not  place  the  (juration  on 
that  ground,  lliese  arguments  apply  with  precisely  the  same 
force  against  the  whole  prohibition.  It  might,  with  the  sama 
reasoD,  be  said  that  no  Statu  would  be  so  blind  to  its  own 
interests  as  to  lay  duties  on  importation  which  would  either  pro- 
hibit or  diminish  its  trade.  Yet  the  framcra  of  our  OonBtilntion 
have  thought  this  a  power  which  no  State  ougiit  to  exercise. 
Conceding,  to  the  full  extent  which  is  required,  tliat  every  State 
would,  in  ita  legislation  on  this  subject,  provide  juiiiciously  ter 
its  own  interests,  it  cannot  be  oonceded  that  each  would  respeet 
the  interests  of  others.  A  duty  on  importa  is  a  tax  on  the  arti- 
cle, which  is  paid  by  the  conaumer.  'Vhe  great  importing  States 
would  thus  levy  a  tax  on  the  non-importing  States,  which  would 
not  be  less  a  tax  became  their  interest  would  afford  ample  seear- 
ity  against  its  ever  being  so  heavy  as  to  expel  commercn  from 
their  ports.  This  would  necvsaarily  produce  counterruiling 
neasorcs  on  the  part  of  those  States  wboee  situation  was  leia 
(arorable  to  importation.  For  this,  among  oth^r  reaan»,  Hm 
whole  power  of  laying  duties  on  imports  was,  with  a  ningte  and 


CB.  xir.] 


rOWEHS  OF  CONGBEBB  — TAXES. 


745 


Alight  exocptioD,  takon  from  tho  Stat«s.  When  ire  ar«  inqair- 
ing  wbother  m  |)articu]ar  Mt  is  n4thin  this  prohibition,  tho  que«- 
tiou  is  nut  wbotfacr  tho  State  may  so  leginl&to  on  to  hart  ttnolf, 
but  whether  tho  act  is  within  tlie  n-onLi  iiud  mischief  of  tho  pro- 
hibitory clause.  It  has  already  bocu  ahown  that  a.  tax  on  the 
article  in  the  hands  of  the  importer  ia  within  its  words,  and  we 
think  it  too  clear  for  controversy  that  the  some  tnx  is  within  its 
mischief.  We  think  it  noquestionable  that  suvh  a  tax  hus  pre- 
cisely the  BAme  tendency  to  enhnnco  the  price  of  the  urticlo  as  if 
impn(K>d  upon  it  white  eutering  t)v)  port. 

§  i02a.  "Tito  coumiel  for  the  8Ute  of  Maryland  insist  with 
great  reason  that,  if  the  words  of  the  proliibitlou  bo  token  (n 
their  uhmwt  latitude-,  they  will  abridge  the  power  of  taxation, 
which  all  admit  to  be  essential  to  tlie  States,  to  an  extent  which 
has  never  yet  been  suspected,  and  will  deprive  them  of  rcsooroM 
which  are  neccoaary  to  Bopply  revenue,  and  which  they  have 
heretofore  been  admitted  to  poascBfl.  These  words  must,  there- 
fore, be  construed  with  some  limitation;  and,  if  this  be  ad- 
mitted, they  insist  that  cnterinR  the  country  is  the  point  of  time 
when  tho  pruhibitiun  ccamii  and  the  power  of  tho  State  to  tax 
oommenoe*.  It  may  be  conceded  that  the  words  of  the  prohibi- 
tion ought  not  to  be  pressed  to  their  utmost  extent ;  that  in  our 
complex  nystem  the  object  of  tho  powers  conferred  on  tho  ^vem- 
ment  of  th«  Union,  and  the  nature  of  tho  often  conllictiu);  powers 
which  remain  in  the  States,  must  alwa\-s  bo  taken  into  view,  and 
may  aid  in  ex[>ounding  the  wonlu  of  any  particular  clause.  But 
while  we  admit  that  sound  principles  of  oonstnictJon  ought  to 
restrain  all  courts  from  carrying;  tho  words  of  the  prohibition  be- 
yond the  ubie<:t  which  the  Constitution  is  intended  to  secure.,  that 
titere  must  be  a  point  of  time  when  the  prohibition  ceases  and 
tho  power  of  tlie  State  to  tax  commeDcea,  we  cannot  admit  tliat 
this  point  of  time  is  the  instant  that  tho  articles  enter  the  coun- 
try. It  is,  we  think,  ol)vioiis  tiiat  this  construction  would  defeat 
tlte  prohibition. 

I  1024.  "The  constitutional  prohibition  on  the  States  to  lay 
a  duty  on  imports,  a  proliibition  which  a  vast  majwrity  of  them 
must  feel  an  interest  in  prcsenini^,  may  certainly  comu  in  con- 
flict with  their  acknowlodRvd  power  to  tax  persons  and  property 
within  their  territory.  The  power  and  the  rvstriotiim  ou  it, 
though  quit«  distjnguiahable  when  they  do  not  approach  eteh 


I 


746 


COK&TITUnON  or  THE   OKITRO  STATES.  [BOOK  m. 


other,  may  jet>  like  Uio  interroning  colors  between  vbite  and 
black,  appnmcb  ao  ncarljr  aa  to  peiplex  thii  undenrtamling,  as 
colorB  pc-r{fl(;s  the  vision  iu  murkiDff  the  distinction  between 
thcju.  Yet  tliu  diaiinctioa  esiHttt,  and  must  be  murkvd  aa  tbc 
otaea  ariao.  Till  they  do  ariao,  it  mi^ht  bo  promBtarc  to  state 
any  rule  na  being  uuiveranl  in  itti  application.  Il  i»  auffioient 
for  tho  prettcnt  to  say,  generally,  that  vhcu  tho  iiujwrtcr  baa  ao 
acted  upon  the  thing  imported  that  it  lias  become  )acorporat«d 
and  mixed  up  with  the  inaas  of  property  in  tlie  country,  it  has, 
perha})^  lo8t  ita  distinctive  character  as  an  import,  and  haa  be- 
come subject  to  the  tiixing  power  of  tlie  State.  But  while  re- 
maining the  property  of  the  importer  in  his  warehouse:,  in  the 
original  form  or  package  in  which  it  was  imported,  a  tas  upna  K 
18  too  plainly  a  duty  on  imports  to  oacapc  Lbv  prohibition  in  the 
Constitution. 

§  10^  "The  ooonaet  for  the  ptaintifTa  in  error  coniend  that 
the  importer  purchaaes,  by  payment  of  the  duty  to  the  L'ulei 
State*,  a  right  to  diapoae  of  bis  merchandise,  aa  well  aa  lo  being 
it  into  the  country ;  and  certainly  the  argument  U  sappottcd  iff 
8tr<mg  reaaon,  as  well  as  by  the  practice  nf  natiooa,  ineladiag 
our  own.  Tlte  object  of  importation  ia  tale;  it  coostitvlea  the 
nkotire  for  payini;  the  duties;  and  if  the  United  Statu  pammt 
■tiM  power  of  cHiferring  the  rigiit  to  svU  aa  the  eauMtntivm  tar 
nrtiich  the  doty  ts  paid,  ererj  principle  of  Cair  dealing  rvq^ai 
that  they  ahould  be  understood  to  confer  iL  The  pnedee  ef 
the  moat  oommcrcial  nationa  conforms  to  this  idea.  Oataa% 
aooording  to  that  practice,  are  charged  oa  dxae  artieka  «Bly 
which  am  intended  fur  sale  or  i  oiiiminpliiai  in  the 
Thut  aca  etores,  goods  iiapurted  and  reexported  ta  the  « 
TBwel,  goods  landed  and  carried  orerland  br  tha  ptfp—a  td 
tag  n^xptyrtvi  fnm  aome  otl»er  port,  goods  ioreed  ia  b*  : 
xt  weather  and  landed,  hot  Dot  for  aala,  an 
p^aeot  of  dntiea.  tie  whole  eovrae  mf  IrgialaHnn  oa  Ik  w^ 
jeet  sbowa  that,  in  the  opinion  of  the  lepdalaie,  Ae  ng^  •»  acU 
is  cooiiecigd  with  tiw  payiaeat  of  datia. 

$]<»&.   •"  The  eouBMlfM- the  MeaiMitta  error  haw 
ored  to  itbutiate  their  pupuaition  thai  the  e 
bitian  eeasM  the  instant  tha  fDods  cater  the  coaurc.  br  •■ 
<f  theceaaeqwnoswUch  t^sD|ipne  IBM 
«fit.     Utheianarttfaoaaiistheri^  tosrii  fc?! 


CH.  XIT.J 


povaa  OP  ooKGHOii^  —  taxes. 


74T 


of  datira,  ho  may,  they  ewy,  exert  tbat  right  when,  where,  and 
A8  he  pli^Hc-a,  and  the  State  cannot  regulate  it  Ue  may  »cli  by 
rotuil,  at  uuctiun,  or  ae  an  itinerant  podler.  He  may  introd))oe 
orlielcit.  oa  fiunpowder,  which  endanger  a  city,  into  the  mid»t  of 
its  population;  be  may  introduce  articlea  which  endanger  the 
public  health,  and  the  power  of  aelf-preeervation  is  denied.  An 
iin)>ortor  may  brin^  iu  i^ooda,  ua  plate,  for  hia  own  use,  and  thus 
retain  much  vnluublo  properly  exempt  from  taxation. 

§  1027.  "Thc*o  ohjcctiona  to  the  principle,  if  well  founded, 
miuld  certainly  )>c  ontitted  to  Herioua  couaiduration.  Hut  we 
think  they  will  be  fuimd  un  examiiiattuu  nut  tu  belong  UDceana- 
rily  to  the  principle,  and  conseqnently  not  to  proi.-e  that  it  may 
not  be  reBortod  t»  vUh  mafcty  aa  a  criterion  by  which  to  measure 
the  extent  of  tlie  prohibition.  Thia  indictment  ia  against  the 
importer  for  selling  a  package  of  dry  goods  in  the  form  in  which 
it  was  imparted  without  n  lidt-nso.  Thia  state  uf  things  is  changed 
if  he  sells  them  or  otherwise  mixes  tliem  with  the  general  prop- 
er^ of  the  Imitate  by  breaking  np  his  packages  and  travelling  with 
them  as  an  itinerant  pedler.  In  Utc  first  ease,  the  tax  intercepts 
ihe  impart  ns  an  import  in  its  way  to  become  incorporated  with 
the  general  mass  of  property,  and  denies  It  the  privilege  of  )m> 
coming  so  incorporated  uutil  it  shall  have  contributed  to  the 
revenue  of  the  State.  It  denies  to  the  importer  (lie  right  of 
using  the  privilege  which  he  has  purchased  from  the  United 
8t«t««  until  he  shall  have  also  purchased  it  from  tJie  State.  In 
the  Inst  vase  the  tax  finds  the  article  already  incorporated  with 
the  moss  of  properly  by  the  act  of  tlie  importer.  Ue  has  used  the 
)>rii-ilcge  he  hod  purchased,  and  haa  himself  mi.\ed  them  up  with 
the  common  mass,  and  the  law  may  treat  them  as  it  finds  them. 
The  same  olHMir  vat  ions  apply  to  plate  or  otlicr  furniture  iwed  by 
the  importer.  So,  if  he  sells  by  auction.  Auctioneers  are  per- 
aons  licensed  by  the  State,  and  if  the  Importer  chooses  to  employ 
them  be  can  as  little  object  to  paying  lor  this  service  as  for  any 
other  for  which  he  may  apply  to  an  officer  of  the  State.  The 
right  of  sale  may  very  well  be  annexed  to  importation  without 
annexing  to  it  also  the  privilege  of  using  the  oflioors  licensed  by 
Uie  State  to  make  salea  in  a  peculiar  way.  The  power  to  direct 
the  removal  of  gunpowder  is  a  branch  of  the  police  power,  which 
unquestionably  remains  and  ought  to  remain  with  the  States.  If 
the  pofloeasor  stores  it  himself  out  of  town,  the  removal  cannot 


748 


OONSITTDTION  OP  THE  UNITBD  fftXTES.  [BOOK  ID. 


be  a  dutj*  oa  importi),  becanso  it  contributeB  nothiug  to  the  re^ 
enu«.  If  he  prufun  placing  it  in  a  public  magatinc,  it  in  bocaun 
be  storos  it  there  iii  h'm  uwa  opinion  muru  ndvnnta^otuly  than 
eUcwhiinc.  Wc  ore  not  sure  that  this  may  not  bu  olaitscd  among 
inapc-ction  lawB.  Tbo  reioova]  or  dvatruotiuD  (d  infuctioua  or 
uoKuund  articles  is  undoubtedly  an  cKerciKe  of  that  power,  and 
forma  an  express  cxocpUon  to  the  prohibition  wo  are  couaidvrtnK. 
Indeed,  thv  laws  of  the  United  States  expmsuly  saovtioa  the 
health  laws  of  a  State. 

§  1028.  "I'he  principle,  then,  for  which  the  plaintiffs  in  error 
contend,  that  the  importer  acquires  a  right,  not  only  to  bring 
the  articles  into  the  country,  but  to  mix  tliera  with  the  common 
mass  of  property,  does  not  interfere  with  the  nocesaary  power  of 
taxation,  which  is  acknowledged  to  reside  in  the  States,  to  that 
dangerous  extent  wtiidi  the  coimsel  for  the  defendants  iu  error 
seem  to  a|>prehcnd.  It  carries  t4)e  prohibition  in  the  Constitu- 
tion no  fnrlhor  than  to  prevent  the  Hlati?«  from  doing  that  which 
it  was  the  great  object  of  the  Constitution  to  prevent. 

§  1029.  "  Kut  if  it  ahcHiId  be  proved  tiiat  a  duty  on  the  articls 
itself  would  be  repu^fnaut  to  the  Constitution,  it  is  still  argued 
that  tills  is  not  a  tax  upon  the  artiote,  but  on  the  person,  Tbs 
State,  it  is  Raid,  may  tax  occupations,  and  this  is  nothing  mora; 
It  is  imposiiiblo  to  conceal  from  ountelveii  that  tliis  is  varying  tbo 
form  without  varying  the  sutwitonce.  It  is  treating  a  prt^ibitlcn 
which  is  general  as  if  it  were  conlincd  to  a  particular  mods  ol 
doing  the  forbidden  thing.  All  must  perceive  that  a  tax  on  the 
Bate  of  an  article  imported  only  for  sale  is  a  tax  on  the  article 
itaelf.  It  is  true,  the  Stat«  may  tax  oeciipations  generally;  but 
this  tax  must  be  paid  by  thuBC  who  employ  tlio  individual,  or  is 
a  tax  on  his  business.  Th«  lawyer,  the  pht-aician,  or  the  tne- 
chanic  must  cither  cliargo  more  on  the  article  in  which  he  deals, 
or  the  thing  itself  is  taxed  throuirh  his  person.  This  the  State 
has  a  right  to  do,  because  no  constitutional  probibiti<m  extends 
to  it.  So  a  tax  on  the  occupation  of  an  importer  is,  in  tike  man- 
ner, a  tax  on  importation.  It  must  add  to  the  price  of  the 
article,  and  be  paid  by  the  oousmner,  or  by  the  importer  him- 
self, in  like  manner  as  a  direct  duty  on  tlie  article  itself  would 
he  made.  Tliis  the  State  has  not  a  right  to  do,  because  it  is 
prohibited  by  the  Constitution, 

5  1030.    "  In  support  of  tiie  argument  that  tlie  pmhibitiiiQ 


CH.  IIT.] 


rovEss  or  conoresb — taxes. 


T^ 


^ 


I 


eeasee  the  instant  the  goodn  are  broaght  into  tJi«  ouuntiy,  a  com- 
pwisuti  baa  been  drawn  between  the  oppotiitu  wurdft,  export  uid 
import.  As  to  export,  it  \a  auid,  tn«aDB  otUy  to  t»rry  gooda  out 
of  tb«  country;  bo,  to  import  mcaoi*  only  to  briug  Lbcm  into  it. 
But,  suppose  wc  oxtvnd  this  comparison  to  the  two  probibitions. 
Thti  States  an)  forbidden  to  lay  a  duty  on  exports,  and  the  United 
^states  are  forbidden  to  Inj  a  tax  or  duty  ou  articles  exported 
from  any  ijtutft.  There  is  some  diversity  in  languiLgc,  but  none 
is  perceivable  in  the  net  which  is  prohibited.  The  United  States 
have  the  some  right  to  tax  occupations  whieh  is  possessed  by  the 
States.  Now,  eupjKise  Uie  United  States  should  require  overy 
exporter  to  take  out  a  license,  for  which  he  should  pay  such  tAX 
u  Congreiiii  might  think  proper  to  impoAe;  would  the  govern- 
ment W.  [icniiitu^d  to  shield  itself  from  tlie  just  censure  to  which 
this  attempt  to  evade  the  prohibitions  of  the  Constitution  would 
expose  it,  by  saying  that  this  was  a  tax  on  thn  peroon,  not  on  tlie 
article)  and  that  the  leginlatur^  had  a  right  to  tax  occupationa  ? 
Or,  suppoac  revenue  cutters  were  to  be  stationed  off  the  coast  for 
the  purpose  of  levying  a  duty  on  all  mcrcbandiHo  found  in  vessels 
which  were  leaving  the  United  States  for  foreign  countries; 
would  it  be  received  m  an  excuao  for  tliis  outrage,  were  the  g)0T« 
emnient  (o  say  that  exportation  meant  no  more  than  carrj'ing 
goods  out  of  the  country,  and  as  the  prohibition  to  lay  a  tax  on 
imports,  or  tilings  imported,  ceased  the  instant  they  wore  brought 
into  the  country,  so  the  prohibition  to  tax  articles  exported 
ceaaed  when  they  were  carried  out  of  the  country  ? 

%  1031.  "  Wo  think,  then,  that  the  act  under  which  the  plain- 
tiffs in  error  were  indicted  is  repugnant  to  that  article  of  the 
Constitution  which  declares  that  'no  State  sbuU  lay  any  impost 
or  duties  on  imports  or  exports. '  "  (a) 


(■)  That  the  fanBiMfi^MMnpli)^ 
ia  Uw  cUbm  of  tfaa  Conttitubon  undsr 
•xmlBUkiD,  docB  Mot  nfec  U>  ut*d««  i<n- 
poTtod  (ram  ana  fUstc  tnto  aiMtlio,  bat 
oaljr  to  ulirW  intportnl  Dnn  ror«iga 
conntiiM  [nloIb^  UnilrJ  SUIm,m«  Wood- 
rat  •.  ruhnia.  e  Wall.  ISS  :  Hiawa  v. 
Loit,   Id.  lis :  Brawn  v.  HMUtan.  lU 

AlaxonMka  by  w  ■ucihwwr  U  «  ux 
on  tlw  goMb  nM ;  ud  wban  apfUtd  M 


good*  Iten  wttitont  Ik*  csmtty,  aoU  tn 
Um  original  |iadcagM  «f  ihi  Ltnp«rur,  ba- 
fan  thcf  have  bee««iw  fncorpwatad  into 
til*  (MMtal  property  of  tba  ncnatry,  tka 
law  Ispiriag  llio  lax  la  redd  •*  lafinf  ■ 
doly  on  ltnp«ata.  Cook  t.  Pcnnajilraaia, 
B7  Oltot  SM.  Tbu  icooiU  )iB|»rte<l  ftaa 
fordsn  OMUilriM,  alUc  tniim  bnti  aaU 
b;  Um  inpartic,  an  rabjcct  tu  Slat*  tas- 
atkin,  avM  tbonigk  tfiU  in  Iba  oalginat 
{■wkagM,  aaa  Ponnr  w.  CMntnonwaaJtl^ 


7B0 


coNsrmmoN  of  the  united  states.         [^book  in. 


$  1082.   Aft  the  power  of  taxation  exists  in  Utc  States  concur- 
rently with  the  United  States,  subject  only  to  the  rcxtrictic 
impoAcrl  by  tlie  Constitution,  several  quostiuiui  have  from  tit 
to  time  ariaen  in  regard  to  the  naturv  and  extent  of  tho  St 
power  of  taxation. 

§  lORll.  In  tli«  year  1818,  the  State  of  Maryland  pa88«(l  an 
a<;t,  laying  a  tax  on  nil  banks  and  branches  thereof  not  chartcrred 
by  the  li^slature  of  that  Htate ;  and  a  question  was  made  wlk^ther 
the  i>tat«  had  a  right,  under  that  act,  to  lay  a  tax  on  the  Branch 
Bank  of  the  United  States  in  that  State.  This  gave  rise  to  a 
moat  animated  discuasioQ  in  the  Supreme  Court  of  the  United 
Stales,  where  it  was  finally  decided  that  the  tax  was,  aa  to  tb»i 
Bank  of  the  United  Statco,  anconstitutionaL'{a)  The  reaBOiuiig 
of  tlie  Supreme  Court  on  thia  subject  was  as  follows:  — 

§  1034.  "  Whether  the  State  of  Maryland  mar,  without  riolat- 
ing  the  Constitution,  tax  that  branch  t  That  the  power  of  taxa- 
tion is  ono  of  vital  importance;  that  it  is  retained  by  the  States; 
that  ft  is  not  abridged  by  the  grant  of  a  similar  power  to  the 
government  of  the  Union;  that  it  is  to  be  concurrently  exercised 
by  the  two  governments, —  are  tntths  which  have  never  be«it' 
denied.  Bub  auch  is  the  paramount  character  of  the  Oonstltn* 
tion,  that  its  capacity  to  withdraw  any  subject  from  the  action  of 
ewn  this  power  is  admitted.  The  Stat4>fl  are  exprmaly  forbidden 
to  lay  any  duties  on  imports  or  exports,  except  what  may  be  abfto- 
lutcly  nweiwary  for  t'xecuting  their  inspection  laws.  If  the  obli- 
gation of  this  prohibition  must  i>e  conceded;  if  it  may  restrain  * 
State  from  the  exercise  «  its  taxing  power  on  imports  and  «x* 
ports ;  the  same  paramotmt  character  wmild  seem  to  restrain,  as 
it  certainly  may  restrain,  a  State  from  such  other  exercise  of 
this  power  as  is  In  il«  nature  Incompatible  with  and  repugnant  to 
the  oonstittitionat  laws  of  the  Union.  A  law  absolutely  repug- 
nant to  auotlier  as  entirely  repeals  tlial  other  as  if  oxpress  terms 
of  repeal  were  used. 

§  10S5.    "  On  this  ground  tho  counsel  for  the  bank  place  its 

>  M'C«llock  e.  8ui«  of  Hatrkaj,  i  VThMt.  a  S16 ;  1  E«iit'i  Ohbb.  Lml  1«^ 
p.  39S  ;  Id.  <01. 

G  WilL  47»:  Wkrins  v.  Tl»  llayor,  S  Vvm  V«A  »i  OamnfBU  (M««m)t,  W 

W*II.  no.  t'.  S.  S». 

Tha   term  "inpoite  or  •(porta"  re-  (aj  See  t  Huv,  Am.  Conu.  !«*,  US 

fm  t«  praptftf,  not  to  lieekiinuDbdag*.  Mif. 


P0WEB8  OF  COXORESS  — TAXEB. 


751 


claim  to  be  exempted  from  the  power  of  a  Stitto  to  tax  \Ut  operm- 
tinns.     Tlierc  \»  no  oxprcMs  proviition  for  the  cane;  hut  tlie  claim 
hag  been  siistaimx)  ou  a  priuciple  which  m  entirely  pervades  tbo 
Coiuttitiitioii,  ig  80  intermixed  witJi  the  iimtcriuls  which  compose 
if,  fui  iiit«rwoveii  with  its  weh,  so  tjlvudiyl  with  ita  texture,  as  to 
l>e  incapahie  of  being  separated  from  it  vitboot  rending  it  into 
nhredg.     Thig  great  principle  is  that  the  Conatitiition  and   the 
law8  made  in  pursuance  thereof  arc  supreme;  that  they  eontrol 
I  the  conalitution  and  laws  of  tltc  respective  States,  and  cannot  be 
controlled  by  them.      I-Voin  this,   which  may  be  almost  termed 
on  axiom,  other  propositions  arc  deduced  aa  corollaries,  on  the 
troth  or  error  of  which,  and  on  tlicir  application  to  this  case,  the 
caune  has  been  snpi^osed  to  depend.     Theee  are,  1st.  Tliat  a 
^wcr  to  create  implies  a  power  to  preserve.    2d.  That  a  power  to 
ay,  if  wielded  by  n  different  hand,  is  hostile  to  and  ineoni- 
le  with  the  powers  to  create  and  to  preserve.     8d.  That 
[where  this  repugnancy  exists,  (hat  authority  which  is  supreme 
moat  control,  not  yield  to  tliat  over  which  it  is  Buprcme.     These 
propositiong,  as  abstract  trutlis,  would  perhaps  never  he  contro* 
verted.     Their  application  to  this  catw,  howerer,  has  been  de- 
nied; and,  iKith  in  mahitnining  the  affirmative  and  the  netrative, 
H  a  splendor  of  eloquence  and  strength  of  argument,  seldom  if  ever 
sorpamiid,  have  lioen  displayed. 
§  1036.    "The  power  of  Congress  to  crcato.  and  of  course  to 

f  continue,  the  l>ank,  was  the  subject  of  the  preceding  part  of  this 
opinion,  and  is  no  longer  to  be  considered  as  questioQablc. 
1'^at  the  power  of  taxing  it  by  the  Stati.>  may  be  exercised  so  as 
to  destroy  it,  is  too  obvious  to  l>e  denied.     But  taxation  is  said 

■  to  be  an  abaolitto  power,  which  acknowledjrcs  no  other  limits 
than  thoflG  expresmly  prescribed  in  the  Constitution,  and,  like 
sovereign  power  of  every  other  doscrtption,  is  trusted  to  tlic  dis- 
cretion of  thoAe  who  use  it  But  the  very  terms  of  this  ni^iment 
t adroit  that  the  sovereignty  of  the  State,  in  the  article  of  taxation 
llSiilf,  is  sulMrdinate  to  and  may  be  controlled  by  the  Constitu- 
tion  of  the  United  States.  How  far  it  has  l>wn  controlled  by 
(hat  hislniment  must  be  a  question  of  constiuction.  In  making 
this  const nietion,  no  principle,  not  declared,  can  be  adiaisaible 
which  would  defeat  the  legitimate  operations  of  a  supremo  gov- 
emmeut  It  is  of  the  very  essence  of  supremacy  to  remove  all 
obstacles  to  its  action  within  its  owo  sphere,  and  so  to  modify 


752 


COWSTITUTION  OP  TRE  IWITKD  BTiTES.  [BOOK  lU. 


every  power  v««tecl  tn  nubordinate  govenUDCnto  as  to  exempt  its 
own  operaticma  from  their  own  influence  Titis  cfTect  aaod  not 
be  stated  in  terms.  It  is  bo  involved  in  the  declaration  or  sn- 
premacy,  so  necesnarily  implied  in  it,  that  the  exprewion  of  it 
could  not  make  it  more  certain.  We  must,  therefore,  keep  il  in 
riev  while  construing;  the  Constitution. 

§  10S7.  "The  arpmient,  on  the  part  of  the  State  of  Maryland, 
is,  not  that  the  States  may  directly  reniat  a  law  of  Oongrew,  but 
that  they  may  exercise  their  acknowledged  powers  U|M>n  it,  and 
that  the  Constitution  leaves  tliem  this  right  in  the  confidence 
that  thoy  will  not  abuse  it.  Before  we  proceed  to  examiue  this 
argument,  and  to  aubjcct  it  to  the  test  of  the  Cnnstitution,  we 
must  bo  jwrmittcd  to  bestow  u  few  considerations  on  the  nature 
and  extent  of  this  original  right  of  taxation,  which  is  acknowl- 
edged to  remain  with  tho  States.  It  is  admitted  that  the  power 
of  taxing  the  pi-oplu  and  thoir  proper^  is  essential  to  the  very 
oxistonce  of  go\-cmmcnt,  and  may  bo  Intimately  exercised  on 
tJie  objects  to  which  it  is  applicable  to  the  ntmost  extent  to 
which  the  government  may  choose  to  carry  it.  (a)  The  only  se- 
curity against  the  abuse  of  this  power  is  foond  in  the  striicture 
of  the  government  itscll  In  imposing  a  tax,  the  legialatnnt 
acta  u|>on  its  constituents.  This  is  in  general  a  sufBeieut  secu- 
rity against  erroneous  and  oppressive  taxation.  The  peo{iIe  of  a 
8tat«,  therefore,  give  to  their  govomment  a  right  of  taxing  them- 
selves and  their  pro|>erty;  and  us  the  exigencies  (4  government 
cannot  be  limited,  they  prescrilNi  no  limits  to  the  exercise  of  tills 
right,  resting  confidently  on  the  interest  of  tJie  legislator,  and 
on  the  influence  of  the  oonstitucnis  over  their  representative,  to 
guard  them  against  its  abuse;.  Uiit  tho  means  employed  by  the 
govcrnaient  of  tho  Union  have  no  such  security ;  nor  is  the  right  of 
a  State  to  tax  them  sustained  by  the  same  theory.  Thoso  means 
are  not  given  by  the  people  of  a  port  icular  Slate ;  not  given  hy 
the  constituents  of  the  legislature,  which  claim  the  right  to  tax 
them;  but  by  the  people  of  all  the  Statos.  They  are  given  by 
all,  for  the  benefit  of  all;  and  upon  tlieory  should  be  aubjoctcd 
to  that  government  only  which  beloi^  to  alL 

5  10S8.    "  It  may  be  objected  to  this  delinition,  that  tho  power 
of  taxation  is  not  confined  to  the  people  and  property  of  a  .State. 

(a)  8m  Kinhad  v.  Hotcbktnv  100  t7.  8-  tn  ;  Bute  Tu  oc  ron<>ii  Boink  II 
WtlLSO*. 


POVEBB  OP  CONGRESS  —  TAXB9. 


708 


I 


It  may  be  exercised  npon  every  object  brought  within  it«  juris- 
diction.  This  is  tnie.  iJut  to  what  source  do  we  truce  this 
right  ?  It  is  obvious  that  it  is  an  incident  of  sovcrpi^ly,  and  is 
coextensive  with  that  to  which  it  is  an  incident.  All  subjects 
over  which  the  novereign  power  of  a  State  extends  are  objects  of 
ttion ;  but  thone  over  which  it  doos  not  extend  are,  ujion  the 
'nundest  principlea,  exem|>t  from  taxation.  This  proposition 
may  almout  bo  pronounced  aoU-oTident.  The  sovereignty  of  a 
State  extends  to  cverylbinK  which  exists  by  its  own  auUiority  or 
h  introduced  by  its  permission;  but  does  it  extend  to  those 
means  which  are  employed  by  Congress  to  carry  into  exe^ulion 
powers  conferred  on  that  body  by  the  people  of  the  United 
States  ?  We  think  it  demonstrable  that  it  docs  not  Thoee 
powers  arc  not  gi^xn  by  tht-  i)coj»1l'  of  a  single  State.  They  are 
given  l>y  the  people  of  the  United  States  to  a  government  whose 
taws,  made  En  pursuance  of  the  Conittilutiou,  urv  declared  to  lie 
supreme.  Conswiuently,  the  iieoplc  of  a  sinf^Ie  State  cannot 
confer  a  sorcrcignty  which  will  extend  over  thcnj. 

§  1089.  '^If  wc  mcaatirc  the  ]*ower  of  taxation  residing  in  a 
State  by  the  extent  of  sovereignty  which  the  people  of  u  single 
State  possess  and  can  confer  on  its  go\-onuncnt,  we  hare  an  in- 
telligible standard,  applicable  to  every  case  to  which  (he  power 
may  be  applied.  We  have  a  principle  which  loaves  the  power  of 
taxing  the  people  and  property  of  a  State  unimpaired;  which 
leaves  to  a  State  the  command  of  all  its  res4>iii-ces ;  and  which 
places  beyond  its  reach  all  those  jmwers  which  are  conferred  by 
the  people  of  the  United  States  on  the  government  of  the  Union, 
and  all  thuse  me-umi  which  are  given  for  tlie  pnrjMMie  of  carrying 
those  pi>wcrs  into  e.teciition.  Wo  hare  a  principle  which  is  safe 
for  the  States  and  safe  for  the  Union.  We  are  relieved,  as  we 
ought  to  be,  from  clashing  sovereignty,  from  interfering  powers, 
from  a  repugnancy  between  a  right  in  one  government  to  pull 
down  what  there  is  an  acknowledged  right  in  another  to  Ituild  up, 
from  the  incompatibility  of  a  right  in  one  go\-emment  to  destroy 
what  there  is  a  right  in  another  to  preserve.  Wo  are  not  driven 
to  the  fterjilexiug  im|uiry,  so  unfit  fur  the  judicial  department, 
what  degree  of  taxation  is  the  legitimate  use,  and  what  degree 
may  amount  to  the  abuse  of  tlie  power.  The  attempt  to  use  ft 
on  the  means  employed  by  the  government  of  the  Union,  in  pur- 
suance of  the  Constitution,  is  itself  an  abuse,  because  it  Is  tho 
VOL.  I.  ~  18 


1M 


CONSTITUTION   OP  TBr  WKTItD  8TA.TfB. 


nsnrpation  of  a  power  which  the  pc«pl«  a(  «  single  State 
pre. 

§  IWO,    **  We  find,  then,  on  jrot  theorr,  »  total  failure  of 
oriinnal  rii;ht  to  lax  the  meaas  emplored  bj  Uio  fiovcrninetA' 
th«  Caion  for  the  escecntian  of  its  powen.     The  riKlil  new* 
istvd ;  and  the  fincstion  whether  it  has  been  surrunderod 
sri«e. 

§  1041.  ^  But,  waivinj;  this  thcorr  for  the  present,  let  as  (*- 
nnw  tho  inqnirr,  whrth^r  this  powttr  can  be  exercised  bj  Ai 
re8pectn-«  Statvs  oanaist«nt^  with  a  fair  ounatruction  of  Ai 
CoDsHitutioQ.  That  the  power  to  tax  iavoh-<>«  the  [towor  U>4^ 
stroT ;  that  the  power  to  deatror  mav  defeat  aod  render  latln 
the  [tover  tn  create; (a)  that  then  is  a  plain  rcpngnanco  iDfls- 
ferring  ou  one  ^Temmeet  a  power  to  control  the  ooiuititiittW^ 
meBsuTvs  of  another,  which  other,  with  re^ieet  to  tlic«e  nq 
measures,  is  decIaTMl  to  be  sapreme  over  that  which  exerts  tl> 
control,  are  propoailions  not  to  lie  denied.  But  all  incitttf!«t>«- 
civs  are  to  bo  Reonciled  by  the  omm^o  of  the  word  fcMit' ^  ' 
Taxation,  it  is  said,  does  aat  »twi— rily  and  iinitv..iJjil' 
dMtny.  To  carry  it  to  Om  exoess  of  dixtmctiuQ  woiiM  U 
lAwae^  to  pRsmne  which  would  banUh  that  oaugdennc  wbirJ 
WBBtial  to  all  government.  But  is  this  s  case  of  ctmfid 
Weald  tbs  people  of  any  one  Stale  Irwst  those  of  anotiifr  witl 
power  to  control  tlh>  most  iasignificant  operations  of  thflr  8i 
goreniBwatT  We  know  they  would  not.  Why,  then,  A< 
we  snppoM  that  the  people  of  any  one  State  would  be  wilUa^ 
trust  those  of  another  with  a  power  to  eontrol  the  o)*cratiiiitj  di 
goremmcnt  to  which  they  have  ooofided  their  moat  itu 
and  moat  raloable  intenwts  f  In  te  legiatatam  of  the'  Vn\ 
aktm  ate  all  represented.  Tht  le^stalue  of  the  L'niMi  ali 
therefore,  can  be  tnsted  by  the  people  with  the  power  of 
ttellti^  measures  whkh  coaeem  all,  in  the  ooofiiiette^  that; 
will  not  be  abused.  TUa,  then,  is  not  a  case  ai  oonffdcn 
we  most  ooDsider  it  as  it  rmlly  is. 
§  104±   -  If  we  apply  the  prindpla  for  which  uie   £ 


HtSL  US.  ta  «UA  amtM 


MWEB8  OP  COXCREfiS  —  TJlXES. 


755 


[arfland  contonds  to  the  Coastitaticm  generally,  we  shall  find 
^t  capable  of  chat^Qg  totally  the  character  of  that  inatrumcnt 
^e  9h.ill  Rnd  it  capable  of  airtmting  all  the  meaHurea  of  the  gov- 
itment,  and  of  prostrating  it  at  the  foot  of  the  Htatea.  The 
Lmericiui  people  have  declared  their  CoDatitution,  aiid  tlic  lawn 
Imade  in  puraoance  thereof,  to  bo  aupremc;  but  thin  principle 
Ivould  transfer  the  Rupremacy,  in  fact,  to  the  Statca.  If  the 
IStatea  may  tax  one  inxtniment  employed  by  the  goremment  in 
[the  execution  of  its  powers,  they  may  tax  any  and  orery  other  in- 
[Btmnient  They  may  tax  tbu  mail,  they  may  tax  the  mint,  they 
ay  tux  patent  righta,  tlioy  may  tax  the  pa}M.>r8  of  the  custom- 
louse,  thoy  may  tax  judicial  prooees,  they  may  tax  all  the  meana 
[empluyi'il  by  tbe  government,  to  an  exccBa  which  would  defeat 
lall  thu  ends  of  govvnimcnt.  Thia  wan  not  intended  by  the 
terican  people.  They  did  not  dusign  to  make  their  fcorem- 
ttrwnt  dependent  on  tlio  States.  Gentlemen  Bay  they  do  not  elaim 
the  right  to  extend  State  taxation  to  tliesc  objeelH.  lliey  limit 
[their  pretcnHlons  to  property.  But  on  what  principle  is  thia  dis- 
tinction made?  Ttiiwe  who  make  it  have  furnii^hed  no  reason 
Lfor  it,  and  the  principle  for  which  they  ciintcnd  denies  it.  They 
■contend  that  the  power  of  taxation  hoa  no  other  limit  than  ii 
~  found  in  the  tenth  section  of  tho  firat  article  of  the  Cunslilution; 
that,  with  reapect  to  everything  else,  the  power  of  the  Stati-a  ia 


leuprcme,  and  admita  of  no  control     If  this  be  true,  the  distinc- 


i '  ' 

■  eaprcn 

■tion  between  property  and  other  gubjects  to  which  Ihe  power  of 
BteatiiHi  la  applicable,  is  merely  ar)>itrary,  and  can  never  be 
^PJHtdned.     This   is   not  all.     If  the  controlling  power  of  the 
Siatea  bo  eatablinbed,  if  their  snprenuicy,  aa  to  taxation,  be  ac- 
knowledged, what  is  to  restrain  their  exercising  this  control  in 
any  shape  they  may  pleaae  to  give  it?     Their  sovereignty  ia  not 
confined  to  taxation.     This  ia  not  the  only  mode  in  which  it 
might  be  displayed.     The  question  is,   in  tnith,   a  question  of 
anpremacy :  and  if  the  right  of  the  Stales  to  tax  the  means  em- 
ployed by  tbe  general  government  be  conceded,  tho  declaration, 
tliat  the  Constitution,  and  the  laws  made  In  pursuanoo  thereof, 
I    shall  bo  Oie  supreme  law  uf  the  laud  is  empty  and  unmeamni; 
■declamation. " 

V     §  104S.    "It  has  also  been  inHJHted  that,  as  the  power  of  taxa- 

Vlion  in  the  general  and  Htute  guvernmeiits  is  acknowledged  to  bo 

concurrent,  every  argument  which  would  suatuin  the  right  of  the 


TS6 


cossTmrnoN  op  thb  ohitkd  niTEi.        [book  m. 


general  govcmraent  to  tax  b«uks  chartered  by  the  States  wiJI 
equally  sustain  the  right  of  the  States  to  tax  banks  chartered  by 
the  ^nersl  government  But  the  two  cases  are  not  on  the  aamc 
reason.  The  people  of  all  the  fJtsles  have  created  thw  gL-tiL-nil 
government,  and  have  conferred  upon  it  the  general  power  of 
taxation.  'I'he  people  of  all  the  ^tate»,  and  (he  .States  tliem- 
seli'es,  are  represented  in  Congress,  ami,  hy  tlieir  represeii- 
tativea,  exercise  this  power.  When  they  tax  the  chartered 
institutions  of  the  States,  they  tax  their  constiluentw ;  and  the«e 
taxes  must  lie  iinif'jnn.  But  when  a  State  taxea  the  oiteratinns 
of  the  government  of  the  United  Statea,  it  acta  upon  iiuititutioBB 
created,  not  by  their  own  constituents,  but  by  people  over  whom 
they  claim  no  control.  It  acts  upon  the  measures  of  a  govern- 
ment created  by  others  as  well  as  themselves,  for  the  benefit  of 
others  in  common  with  tlipiaselves.  ThndifFcrenoo  ia  that  wbidi 
always  exists  and  always  must  exist  between  the  aoliun  u(  the 
whole  on  a  part  and  the  action  of  a  part  on  the  wIh>1c  ;  between 
the  laws  of  a  government  <li<clared  to  be  supreme  and  tbutu.'^  of  a 
government  which,  when  in  opposition  to  tliose  laws,  is  not  bm- 
preme.  But  if  the  full  application  of  tliis  argument  could  bo 
admitted,  it  might  bring  into  question  the  right  of  Cnngre«s  to 
tax  the  Htatc  l>anka,  and  could  not  prove  the  right  of  the  States 
to  tax  the  Bank  of  the  United  States. 

§  1044  "The  Court  has  bestowed  <hi  this  subject  Jte  most 
deliberate  consideration.  The  result  is  a  conviction  that  the 
Stales  have  no  power,  by  taxation  or  otherwise,  to  rvt«r(l,  im- 
pede, burden,  or  in  any  manner  control,  tlw  operations  of  tb« 
coDBtitntional  laws  enacted  by  Congress  to  carry  into  cxeciitinn 
tlic  powers  vcBti^d  in  the  general  guvt-mmcnt.  Tliis  is,  wc  tliink, 
the  unavoidable  oonsequenco  of  that  supremacy  which  the 
Constitution  has  dcelured.  Wo  are  unanimously  of  opinion 
that  the  law  possod  by  the  legislature  of  Maryland,  imiMwing 
a  tax  on  Uie  Bank  of  the  United  States,  is  unconatihitioual  and 
void."* 

§  X045.  In  another  case  the  question  was  rai»cd  whether  a 
State  had  a  constitutional  authority  to  tax  stock  Issued  for  hMUis 
to  the  United  Statea;  and  it  was  held  by  the  Supreme  Court  that 

I  The  Aoetrimt  wo  ai^u  le^XMninrf  hj  lh«  (lni«eiiiBC«Ort  in  »  UWr  (Mr,  uid  d*. 
Ub>i>l«ly  ««anii«l.  OAon  ».  B.nk  ot  thr  VtittA  StUw  «  Whort.  R-  JW,  8M  to 
8S9  ;  1  Kant't  Owin.  LacL  13,  pp.  331  to  3». 


CB.  XIT.] 


P0WK8S  or  COXQBESS  —  TAXES. 


767 


a  State  had  not' (a)  The  reaaoning of  the  Conrt  was  as  follows; 
*'Is  the  stock,  isaued  for  loans  made  to  the  goremioent  of  the 
United  States ,  liable  to  be  taxed  by  States  and  corporations  ? 
Congress  has  {>owor  Mo  borrow  money  on  the  credit  of  the 
United  States. '     llio  stock  it  issues  is  the  evidence  of  a  debt 

1  WMton  r.  The  City  Council  cfCbwiMtoa,  3  F<ton'iS.  MB,  ptr  Ur.  CUrfJiutiM 


I 


((■)  Srt  Bfltik  uf  CoBinciM  ^  Kmr 
Toik.  S  Block,  esb :  Uuik  Tmx  Cue,  2 
Wkll.  SOO;  Tha  lUnk  v.  Tb*  Ma^or.  7 
WkU.  Ifl  1  Bsuk  «.  Tb*  SujifrriMin,  7 
WoU.  28. 

Tbo  g«n<<nJ  |)r!ii«ipl«  dwknd  in 
U'Oulloch  t.  Muylauil  wm  agun  kpfJied 
In  DoLbiii*  V.  Eria  Co..  IS  Ptt.  44$.  It 
VM  Uwrn  b«Iil  ikat  >  Stai*  «oulil  not  levy 
a  tu  npoD  Um  conqntinUao  *Uow«d  bj 
du  United  Stale*  to  one  of  ila  oKcan, 
vhkb  ooanptMatlaui  it  U  to  bs  nniTDMl, 
«H  iM  mora  than  th«  mtvIom  wew  worth, 
■nd  M>  mors  thutt  wooM  be  aufficient  to 
•Mun  a  dUigMil  ptrfanrntBCo  of  the  oB- 
dal  duliat.  Aad  it  hu  also  Iwa  htld 
oompeunt  (of  OoMgnM  to  poviile  tliat 
bank*  orRaaliud  oiiilrr  !la  cnactnunta  may 
be  taxed  bj  tlir  SUM  to  a  ovlaln  extmit 
and  in  a  particular  mj,  uid  nol  otbcr- 
wUc  Van  AlUu  «  A»e«on^  !  W.U. 
6TS  :  V*op\*  «.  ComwWoner*.  4  WalL 
S44  I  8wU<7  >:  People,  I  Wall.  4W. 

Bat  Slate  luatiao  at  a  fedenl  iiiflru- 
tn»oialitj,  la,  foe  instoMev  of  a  iiilroad 
<rhkh  ia  HDpkijrKl  by  tb*  fOventBMt  for 
ita  par]>«ae«,  ii  not  UuplWdl;  pmUhited 
vhcrc  it  doe*  not  imfit  the  nnrnlneta  or 
capatnUtr  of  aoch  iMtrument*  1«  lervG  the 
gmrfnuMUt.  noniaoa  ■>.  Padtic  Ball- 
Mad,  t  WalL  (TU  See  Nntiooal  Baak  e. 
ODnmoaWMlth,  a  Wall.  SOS. 

On  Ibe  «Ah(r  band,  and  for  Iha  aame 
itacD*^  tW  6«pt«nw  Coort  hia  deckiad 
It  teeooiiJatMt  for  Ibe  Vaitti  atalea  to 
InpoH  a  lax  vpoa  the  aalarr  of  a  State 
offiow.  "If  the  moani  and  inetnunental- 
itica  onployvxl  Iqr  [tb*  Meral]  govM** 
neat  to  tanj  iiitu  operatioM  lb*  fvwtn 
panted  to  h  an  neoanrilf,  and  for  the 
laliaefafK-inaatadaB,  exempt  froan  tax- 


ation hf  the  Staens  why  are  not  thoee  «f 
the  Stale*  defending  upon  thaii  nurvcd 
|>aw*r*  tat  like  TMtona  e^oatl;  exempt 
from  fedml  taxation  I  Tbair  imiintiured 
exittoicn  ii  at  oacnUal  in  the  one  rate 
aa  In  thr  other."  The  CoUeclor  r.  Day, 
II  Wall.  127.  And  the  SUU  <ouite,  ap- 
OD  the  meouing  in  H'Cntloob  v.  llaiy> 
land,  ha**  held  that  Uanp  datiea  r«uld 
nut  br  impoeed  upon  Stale  pracoa.  War- 
ren *.  VuH,  S3  Ind.  370 ;  Jane*  v.  delate 
of  Ke(^  1»  Wia.  »S»  :  n6dd  r.  Coir.  IS 
Uicb.  SW ;  tTnion  Itank  e.  IIlU.  3  CoM. 
9»  i  Smith  9.  Short,  40  Ala.  79(1.  Kor 
upon  the  Ux  dpnls  of  a  Stat*v  Saf  lea  *. 
Davie,  SS  Wit.  tU.  Nor  npon  tha  offl- 
eUl  bonib  ^  a  elate  ofllcsr.  Slate  e.  Gaa- 
too,  33  IniL  1.  Some  of  thoee  taeee  am 
reforrcd  to  with  apjiTobation  by  Mr.  Jn»- 
tic*  Ctiflool,  in  drcidiiiK  the  caae  of  Day 
V.  Bmnnittua.  Sue  Ain»rlcan  L«w  B«Tt«v 
for  Oct.  isn.  p.  I7d. 

b  Veaiee  Bank  t>.  Fcnno.  S  Wall.  iO, 
It  «•■  held  that  Congrcaiional  taiatioM  el 
State  bank*  of  l«eae  to  an  eiteat  thai 
vobU  put  aa  end  to  their  exiaUMa  erat 
MutUnticeMl,  notirithitandiag  it  wa*  m- 
poaod  br  that  expn*a  parpoac  and  not  for 
rereDUo.  And  in  Cnmdalt  e.  Nevada,  0 
Wall.  3S,  a  Slat*  Ui  upon  carritrs  of  paa- 
aengne,  of  eo  iniMh  for  each  panengtr 
carried  oat  of  the  Slate,  w«a  held  r<ni, 
heeana*  If  tha  power  exiited  to  Impoee  it, 
it  might  be  extrclMd  to  an  exieni  thel 
wovld  pnclnde  tha  goTFrnBicsi  bwn 
tmufNttiMg  ita  troofa  tlme^  the  Scat* 
by  the  w^  node*^  o(  ita  dtiectt*  bwn 
rialting  fi"  CapJIol  or  Ibe  frdotB]  officn^ 
where  the  8tatu  llat  moat  Ik  rroeetd  for 
the  pUTpnee.  Am)  lee  Minol  r.  Pbiladel* 
phia  R.  Col,  S  Abb.  V.  S.  S33.    C. 


758 


ctissmmoN  op  tbe  united  btxtes.         [book  itkl 


created  by  the  exercise  of  this  power.     The  tax  in  qaestion  is  mi 
tax  upon  the  contract  subciiatJng  between  the  Koreniinent  and! 
the  individual.     It  bt^rB  directly  upon  that  contract  while  Bub- 
flisting  nnd  in  full  force.    The  power  operates  upon  tbo  contmct 
the  instant  it  is  framed,  and  must  implj^  a  right  to  affect  that 
oontrocL     If  the  States  and  eorporatiuns  throuf^hout  the  Cniuo 
pOMeM  the  power  to  tax  a  contract  fur  the  loan  of  inuuey,  what 
shall  arrrat  this  principlo  in  ita  application  to  cvon,-  other  con- 
tract T    What  measure  can  govonunont  adopt  which  will  not  bo  i 
exposed  to  its  influence? 

§  1M6.  "  But  it  is  unneeesssry  to  pursue  this  principle  throupih 
ita  diversified  application  to  all  the  ccmtrscta  and  to  the  various 
operations  of  government.  No  one  can  be  selected  which  ia  of 
more  vital  interest  to  tlie  community  than  lliia  of  burrowing 
money  on  the  credit  of  the  United  States.  No  power  tiM  been 
conferred  by  the  American  pctiple  on  their  (TJVfnimcnt,  the  free  j 
and  unburdened  exercise  of  which  more  deeply  affects  every  I 
member  of  our  republic  In  war,  when  tho  honor,  the  rafetr, 
the  independence,  of  tbe  nation  arc  to  bo  defended,  when  all  its 
resources  are  to  be  strained  to  the  utmost,  credit  must  be  brou^it 
iu  aid  of  taxation,  nnd  tho  abundant  revenue  of  peace  and  proA* 
perity  must  be  aiiticipatod  to  uupply  tho  exicencies,  tbe  argent 
demands  of  the  moment.  The  people,  for  objects  the  most  im- 
portant which  can  occur  iu  the  progrew  of  nations,  liave  empow- 
ered their  gorenunent  to  make  tbcae  anticipations,  'to  borrow 
money  on  the  credit  of  the  United  States.*  Can  anything  be 
more  dangerous  or  more  injurious  than  the  admission  of  u  prin- 
ciple which  authorizes  every  State  and  every  corporation  in  the 
Union,  which  possesses  tlio  right  of  taxation,  to  burden  the 
exercise  of  this  power  at  their  discretion? 

§  1047.  "  If  the  nght  to  impose  the  tax  exists,  it  is  a  right 
which  in  its  nature  acknowledges  no  limits.  It  may  bo  carried 
to  any  extent,  within  tho  jurisdiction  of  the  State  or  ourporataoa ! 
which  imposes  it,  which  the  will  of  each  State  and  oorporatton 
may  prescribe.  A  power  which  is  given  by  the  whole  American 
people  for  their  common  good,  whioh  is  to  bo  exercised  at  the 
most  critical  periods  for  the  moftt  important  parpuses,  on  the  free 
exercise  of  which  the  interests,  certainly,  perhaps  the  libi'rty  of 
the  whole  may  depend,  —  may  bo  burdened,  imjMJfied,  if  not  ar- 
rested, by  any  <A  tbe  organized  parts  of  the  oonfederaoy. 


CH.  117.] 


roWEM  OP  COSCBEM  — TAXES. 


769 


I 
I 


§  HM8.  "  In  a  society  formed  like  ours,  with  one  Bupreme  gov- 
ernment  for  oatioual  purposeo,  and  Qumeroiu  State  govenunenU 
for  other  purposes,  in  manT'  reapocts  iodcpendont,  and  in  the  iin- 
oontroUed  exercise  of  manj-  importaiit  poircra,  occasional  intcrfcr- 
enoes  ought  not  to  surprise  us.  The  power  of  taxation  is  one  of 
tlie  moot  eaaeotial  to  a  folate,  and  one  of  the  most  extensive  in 
its  operation.  The  attempt  to  maintain  a  nile  which  shall  limit 
its  exercise  i»  undoubtedly  among  tho  most  dolioate  and  difficult 
duties  which  can  derolve  on  those  whoee  province  it  is  tocxjrauud 
the  supremo  law  of  the  land  in  iU  applicatJMi  to  the  cases  oi  mdi- 
Tiduals.  This  duty  has  more  than  onoe  devolved  on  this  court. 
In  the  porfonnanco  of  it  we  have  considered  it  as  a  neoeesary 
consequence  from  the  supremacy  of  tiio  government  of  the  whole, 
that  ita  action  in  the  exercise  of  its  Ic^timate  powers  shonld  bo 
free  and  unembarrassed  by  any  conflicting  powers  in  the  {xwseg- 
sion  of  ita  )>arta ;  that  the  powers  of  a  State  cannot  rightfully  be 
so  exercised  aa  to  impede  and  obstruct  the  free  course  of  those 
measures  which  the  government  of  the  United  States  may  right> 
folly  adopt. 

§  1049,  *'  This  subject  was  brought  before  tlio  court  in  the  case 
oE  ITCuUocli  V.  The  State  of  Maryland,'  wliore  it  was  thorou^ily 
argued  and  deliberately  considered.  The  question  decided  in  Utat 
ease  bears  a  near  rcsemblunoo  to  Uist  which  is  involved  in  this. 
It  wiis  discussed  at  the  bar  in  all  its  relations,  and  examined  1^ 
the  court  witli  its  utmost  attention.  Wo  will  not  re|feuit  the  rear 
soning  which  cocductod  us  to  the  conclusion  thus  formed ;  bat 
tliat  conclusion  was,  tliat  *  all  subjects,  over  which  the  sovereign 
power  of  a  Statu  extends,  are  objects  of  taxation ;  but  those  over 
which  it  docs  not  extend  are,  npon  the  soundest  principles,  ex- 
empt from  taxation.'  'The  sovereignty  of  a  State  extends  to 
everything  which  exists  by  its  own  authority,  or  is  introduced  by 
ita  permission ; '  but  not '  to  those  means  which  are  employed  by 
Congress  to  carry  into  execution  powers  conferred  on  tliat  body 
by  tlie  people  of  the  United  States.*  '  The  attempt  to  use  *  the 
power  of  taxAlioi) '  nn  tlie  means  employed  by  the  g<)veramont  of 
the  Union  iti  jiursuance  of  the  Constitution  is  itself  an  abuse  ;  be- 
cause it  is  the  usurpation  of  a  power  which  the  people  of  a  single 
State  cannot  give.*  *The  States  have  no  power,  by  taxation  or 
otherwise,  to  retard)  impede,  burden,  or  in  any  manner  ctmtrol 

1  4  WhaMon,  SIS. 


TOO 


COHaXlTCTIOK  OP  THE  DNITBD  STATES.  [dOOE  UI. 


the  operation  of  the  constitntJODal  lawi  enacted  by  OongresB  to 
carry  into  exocuticm  the  powers  vcatod  la  the  Kcneral  gorem- 
ment.'  We  retain  the  opinions  which  were  thvii  esprcBsed.  A 
contract  made  by  the  government  in  the  oxcrcioo  of  its  power,  to 
borrow  money  on  the  credit  of  the  United  Statem  is  undoubtedly 
independent  of  the  will  of  uuy  State  in  which  (he  individual  who 
lends  may  reside;  and  in  undoubtedly  an  0]>cration  ciisentiiil  to 
the  important  objects  for  which  Uie  govemmout  was  oruated.  It 
ought^  thercloro,  on  the  priuoipica  aetUcd  iu  the  cow  of  M'Calluch 
V.  The  State  of  Maryland,  to  bo  exempt  from  St«te  taxation,  atwl 
coutivtitieutly  from  being  tazod  by  corporations  deriving  their 
power  from  States. 

§  1050.  "  It  is  admitted  that  the  power  of  the  gorenuiienl  to 
borrow  money  cannut  be  directiy  opposed;  and  tliat  any  law  di< 
rectly  obstructing  its  operations  would  be  void.  But  a  distinction 
is  taken  between  direct  opposition  and  those  laeaaures  which  laay 
eonsoqucntially  affect  it ;  that  is,  a  law  prohibiting  loons  to  the 
United  States  would  be  void ;  but  a  tax  on  them  to  any  amount  is 
aJlowablo.  It  is,  we  think,  impossible  not  to  perceive  the  inU- 
mate  connection  which  exiats  between  theae  two  modes  of  acting 
on  the  subject.  It  is  not  the  want  of  original  power  In  on  inde- 
pendent sovereign  State  to  prohibit  loans  to  a  foreign  government 
wliich  restrains  the  legislature  from  direct  opposition  tu  those 
made  by  the  United  States.  The  restraint  is  impoeod  by  our 
Constitution,  l^e  American  people  have  conferred  tiie  powvr  of 
borrowing  money  on  their  government ;  and  by  nutkitig  that  gov* 
ernment  supreme  luive  shielded  Ita  action,  in  the  exercise  of  this 
power,  from  the  aotion  of  the  local  governments.  The  grant  of 
the  power  is  incompatible  with  a  restraining  or  oontrolling  power; 
and  the  de<!laration  of  Hupromacy  is  a  declnration  that  no  snch  re> 
straining  or  controlling  power  shall  bo  exercised-  The  ri(^t  Ut 
tax  the  contract  to  any  extent,  when  made,  must  o|>erate  npon 
the  power  to  l>orrow,  before  it  is  exercised,  and  hare  o  sensible 
influenoQ  on  tlie  contract.  The  extent  of  this  inflnence  depends 
on  the  will  of  a  distinct  government.  To  any  extent,  Jiowpver  in- 
considerable, it  is  a  liui-den  on  the  operations  of  government.  It 
may  be  carried  to  an  extent  which  will  arrest  (hem  entirely. 

§  1051.  "  It  ts  admitted  by  the  counsel  for  the  defendanld.  that 
the  power  to  tax  stock  must  affect  the  terms  on  whicli  limua  will 
be  made.     But  this  objection,  it  \a  said,  has  no  more  weight,  when 


» 


POVEBS  or  O0KGBE68  — TAXES.  761 

nrgcd  ngainitt  Uie  application  of  oti  noknowlodged  power  to  gor- 
ernment  »iack,  than  if  urged  agiinat  its  applicatioD  to  lands  sold 
bjr  the  United  States.  The  distinction  is,  wo  think,  apiMtrcnt. 
When  lands  are  Hold,  no  oonnection  remains  between  the  pur- 
chawr  and  the  government.  The  lands  purchaaed  become  a  part 
of  the  RUU0  of  property  in  the  countr)-,  with  no  implied  excmp* 
from  common  Inirdenn.  Alt  lands  are  derived  from  the 
iCral  or  particular  gnvernment,  and  all  lands  are  subject  t« 
taxation.  Lands  sold  are  in  the  condition  of  money  borrowed 
and  repaid.  ItB  liability  to  taxation,  in  any  form  it  may  then  as- 
Bumc,  is  not  questioned.  The  c«nni?ction  between  Ute  borrower 
and  the  lender  is  dissolred.  It  is  no  burden  on  loana,  it  is  no 
impediment  to  the  power  of  borrowing,  thai  tJie  money,  whpn  re- 
paid, loBGB  its  exemption  from  taxation.  But  a  tax  upon  debts 
doe  from  the  gorcnunfint  stands,  we  think,  on  very  different  prin- 
ciples from  a  tax  on  lands  which  the  gorernment  has  sold.  The 
Federalist  has  been  quoted  in  the  argument,  and  an  eloquent  and 
-well-merited  eulogy  has  been  bestowed  on  the  great  statesman  who 
is  supposed  to  bo  the  author  of  the  number  from  wbicli  the  quota- 
tion was  mado.  This  high  authority  was  also  relied  upon  in  the 
ease  of  M'CulIoclt  v.  The  State  of  Maryland,  and  was  considered 
by  the  court  Without  repeating  what  was  then  said,  we  refer  to 
it  aa  exhibiting  our  view  of  the  sentiments  expressed  on  this  sub* 
jeet  by  the  authors  uf  that  work. 

§  10S2.  '*  It  has  been  supposed  that  a  tax  on  stock  comes  with- 
in the  exceptions  stated  in  the  case  of  U'Culloch  v.  The  State  of 
Maryland.  Wc  do  not  think  so.  'I'be  bank  of  the  United  States 
is  an  instrument  cascntial  to  the  fiscal  oi>erations  of  the  govern- 
ment :  and  the  power  which  might  be  exercised  to  its  destruction 
was  denied.  But  pro|)erty,  acquired  by  that  corjioration  in  a 
State,  was  supposed  to  be  placed  In  tlie  same  condition  with  prop- 
erty acquired  by  an  individual.  Tlie  tax  on  goremmcnt  stock  is 
thouglit  by  tills  court  to  be  a  tax  on  the  contract,  a  tax  on  the 
power  to  borrow  money  on  the  credit  of  the  Cnited  States,  and 
oonaequently  to  be  repugnant  to  the  Constitution." 

$  1058.  It  is  observable  that  these  decisions  turn  upon  the 
point  that  no  State  can  have  authority  to  tax  an  instrament  of  the 
United  States,  or  thereby  to  diminish  the  means  of  the  United 
States,  Uiied  in  the  exercise  of  powers  confided  to  it.  But  there  is 
oo  prohibition  upon  any  State  to  tax  any  bank  or  other  corpora- 


762  comnmmoK  of  tbk  wmsD  states.         [book  iil 

tioa  created  by  its  owa  anthority,  unlesa  it  haa  restrained  itself, 
by  the  charter  of  incorporatioa,  from  the  power  of  tazfttioo.* 
This  subject,  however,  will  more  properly  fall  under  notice  in 
some  future  dtscussionB.  It  may  be  added  Uiat  CongreBs  may, 
without  doubt,  tax  State  banks ;  for  it  ia  clearly  within  the  tax- 
ing power  confided  to  the  general  government.  When  Con- 
gress tax  the  chartered  inatitutiona  of  the  States,  they  tax  their 
own  oonatituents ;  and  Buch  taxes  muat  be  uniform.^  But  when  a 
State  taxes  an  institution  created  by' Congress,  it  taxes  an  iustru* 
meat  of  a  superior  and  independent  sovereignty  not  repreeented 
iu  the  State  legislatura  (a) 

^  PltindetiM  Buk  v.  Biningi,  t  Peten's  R.  Sli. 
*  irCaUaeliv.  Huyknd,  1  Wheat  B.  SIS,  US. 

{a)  8«e,  bowsrer,  Thompna  v.  Facifie  lUniotd,  0  Tall.  S19  j  National  Bank  •■ 
Commonvultli,  9  WalL  SS8. 


APPENDIX. 


APPENDIX. 


1 


WatLK  Ihii  wuk  mt  lUtiiig  through  tht  ptttt,  Pnstihnt  Jukaw't  Pnolaaalioii 
of  tb«  lOtb  of  DMarobtT,  1833,  conoerniag  tlw  (Uwn]  ncnt  onUnanw  of  Swath  Cam- 
Una  on  tha  talgect  oT  the  tariff,  apptand.  Hwt  doenoMBt  «mtuM  *  moM  cUbontc 
Ti«w  of  itT«nil  i|n«Miuiw  which  bar*  been  dUciwMil  In  thU  tni  lh«  folhwtng  votuMf, 
(Specially  itqwctlng  the  Kuiiramsoy  of  ifa«  law*  «f  th«  Uniou,  tho  right  of  tbe 
jndidiuy  ta  <Ud<]e  upon  the  coiiitilutioiuilitjr  of  time  bwa,  auil  th«  lata)  repu^iint'}' 
to  the  CoiUtltiitiMi  ot  the  moJam  iloctrino  «f  nnltificatioo  aaaenei  tu  that  onlinuivp. 
la  a  *tat«  paper  ll  I*  radlled  to  wry  high  praiae  (or  tba  clearncu,  fame,  ami  f<lu<|nAiin> 
with  yihkii  it  liai  d«r«ni]«d  the  righia  and  powen  of  tha  natiouul  gnvHrnnitnt.  1  glivjijr 
oopf  into  tfaoe  pagn  Bome  of  it*  motil  Snijwrtant  pMngti^  a*  smoDg  the  ableat  eoni* 
BiRitario)  (Tot  oBrfd  tipon  the  Cooatitction. 

"  Whwaaa,  a  convcntjoa  a»Dmbleil  !n  the  Stata  of  Sovlh  Carolina  hare  paawl  an 
ardlitaoN  hf  which  thay  daelaia  'that  tha  xntral  acta  aad  part*  of  «ts  of  tlw  Csa- 
gieaaof  tb«  United  Statea,  pntporting  to  boUwafOT  tbelinpoaiiigaf  dutinaod  inpoatu 
on  tba  iBpottatMn  «f  brdgn  oonunodttiea,  and  now  liating  adoal  opnatlaa  and  albct 
wItUBlhaUDltad9lata*,aadmai«wpa:hdljr'  Iso  uta  for  tli«  aama  purpoaa  paaad  on 
tha  8«lh  of  Hay,  1833.  and  on  thelllbof  July,  18SS,  'aiannanthoriitilbylbeComi- 
tutkn  of  the  tfnitol  Btataa,  and  riulate  the  trv*  mvuiing  and  iaKait  tberrof,  a»d  ara 
nail  a*d  raid,  and  no  law,*  nor  binding  on  tha  chinna  of  that  Suieor  ttaoffiotni  and 
lif  thit  laid  ordinan«o  it  ia  fvrtliar  doeknd  to  be  valairful  far  any  of  iht  (oMtilntad 
authoritlea  of  tha  Stata,  or  of  tha  Cnitad  Statai^  to  anfotuf  the  paymint  of  tba  datiaa 
impoanl  by  tt»  nhl  acta  wtthln  tha  aania  Stat^  and  tliat  it  i«  tha  doty  of  iha  Itgiala- 
tvrs  to  pass  luah  tin  as  may  be  neoasary  to  give  toll  effect  to  the  aid  otdiMJia  : 

' '  And  wh«r»a,  by  tbe  said  ordinance,  it  i>  furtlKr  ordained,  that  i>  no  ease  of  law  m 
a^tf,  doeided  in  the  ooutti  of  Mid  State,  vbmin  ahall  b«  drawn  in  qoealioa  the  ralid- 
Hy  «( tha  aald  onllnanea,  or  of  the  acta  of  the  lagUalura  that  nay  be  puaed  to  (in  It 
dtecl.  0*  o4  the  said  Uwt  of  the  Unltad  Suta^  no  a|>p«al  ahaU  be  allowid  to  tba  Su- 
ptens*  Court  of  the  failed  States  w>r  ahaU  any  oopy  «f  the  iword  b*  iwralUed  or 
aUoired  for  that  pnrpoae,  and  thai  any  pataon  attempting  to  take  aoch  apptal  aball  br 
pmtihad  as  for  a  eoatmpt  of  «ouit : 

"And,  nnally,  Iha  aaM  ordlMno*  darlarm  that  the  paople  of  Sooth  Caralina  wfl] 
maintaiii  (he  nU  ortUnaaoa  at  erery  batard ;  and  tliat  tltay  will  oontfdar  iht  paaasgi 
of  any  a«t  by  Congrea^  aboHiUi^  or  chising  the  port*  of  iba  taid  Stata,  or  otharwiae 
ahatnicting  tha  frta  l^roM  or  cgroM  of  t wails  to  and  fttm  tbe  said  porti^  «r  any 
etbet  act  «f  th*  Fadaia)  gornnawDl  to  ooerot  tbt  Bute,  that  np  her  porta,  dMimy  or 
hartas  her  eomniem.  or  to  <n(nrra  the  aaM  acta,  oUianrita  than  ihrciagh  tba  cItII  lit- 
hnAala  of  the  oonntry,  aainoonusUat  with  tha  loMgtr  cwnttnnaMa  of  South  OareliBafn 
the  Cnloa :  and  that  tha  paopla  of  tbt  nU  State  will  tfcMtalbnh  held  tfaematlna 


m 


coNsnTcnoN  07  the  cnitkd  btatk.        [booe  m. 


Qsurpatioti  of  a  power  which  the  peo[>le  o(  •  stogie  Suite  cannot 
give. 

§  10-10.  "  We  find,  then,  on  jcuit  theorjr,  a  total  faElurn  of  this 
orifriaal  rif^ht  to  tax  tho  meann  employed  b;  the  govenuoent  of 
the  Union  for  the  eiecution  of  its  powem.  The  right  never  ex- 
isted ;  and  the  qoestioQ  whether  it  has  been  surrendered  cannot 
arise. 

§  1041.  "But,  waiving  this  theory  for  the  present,  let  oa  re- 
■nme  the  inqiiirr,  whether  this  power  can  be  exert-ised  by  the 
respective  States  consistently  with  a  fair  isunstrucliou  of  the 
Constitution.  That  the  power  to  tax  involvm  the  power  to  do- 
stroy ;  that  the  power  to  destroy  may  defeat  and  mndor  uscIum 
tlio  power  to  crL-at«;(<i)  that  (hen;  is  a  plain  repngnanoo  in  oon- 
forring  on  one  government  a  power  to  control  the  cotwtitutional 
meiiftures  of  another,  which  other,  witli  respect  to  thoso  very 
nieaaureti,  la  decliired  to  be  suprtiuic  over  that  which  exerta  the 
control,  arc  propositions  not  to  be  denied.  But  all  inconsisten- 
cies are  to  be  rueonoik-d  by  (he  mngie  of  Uie  word  (m^MMi: 
Taxation,  it  is  said,  docs  not  necessarily  and  imavoldably 
destroy.  To  earry  it  to  tlio  cxcscss  of  destruction  would  be  an 
ahusc^  to  pruftuiue  which  would  baniidi  that  cunliilence  which  Is 
essoDtial  to  all  government.  But  is  tliis  a  coao  of  conridenoe  * 
Would  the  people  of  any  one  State  trust  tliu»c  of  another  with  a 
power  to  control  the  most  insignificant  opcntionit  of  their  State 
government?  We  know  they  would  noL  Why,  then,  should 
we  suppose  that  the  people  of  any  one  Stato  would  he  willing  to 
trust  tliose  of  another  with  a  power  to  control  the  operations  of  a 
government  to  which  they  have  confided  their  most  important 
and  most  %'alual>Io  intcrestaf  In  the  legislature  of  the  Union 
alone  are  all  represented.  The  legislatnre  of  the  Union  alone, 
therefore,  can  be  trusted  by  the  people  with  Uio  power  of  con- 
trolling meoaurcs  which  conceni  all,  in  the  conlideni-e  that  it 
will  not  be  abused.  Thia,  then,  is  not  a  case  of  coniideDoet  and 
wo  must  consider  it  as  it  really  is. 

§  1042.  "  If  we  apply  the  principle  for  which  Uio  State  <d 


(a)  A  itrfUng  Uliutntion  U  •Abrled 
bf  lite  CMO  cf  ToHia  Ba^  v.  leitao,  8 
Wall.  633,  in  which  lantliMi  impoand  ajh 
on  Bute  hinin  and  tholr  dreubtiao  Tor 
ihe  rtrj  pnrfKM*  of  tlmtnotiun  wm  litld 


not  uaeoQrtittition*!.  Tin  earn  of  {■»• 
[Mita  Wrici  not  priia«il)r  tor  tb«  piu> 
foim  tit  rcvMia^  bnt  in  onUr  to  aid  hone 
lodattir  hf  chMUas  impwtatkiiu,  nuy 
«lu  b«  rtr«R*il  to. 


CH.  ZIV.] 


MNBMBnf'  awpuwi — Tins. 


765 


Marylnnd  contends  to  th«  Conntitution  g^neroll}*,  we  Bball  find 
it  capable  of  changing  totaU;  the  character  of  that  inBtrumonb 
We  nhall  find  it  capable  of  arrrating  all  the  metuiiire6  of  the  goT- 
emment,  and  of  proHtrating  it  at  tlio  foot  of  the  States.  The 
American  people  hare  declared  their  Constitution,  and  the  Uwb 
made  in  pursuance  thereof,  to  bo  aupreme;  but  thin  principle 
would  transfer  the  Buprcmacy,  in  fact,  to  the  Stutoa.  If  the 
States  may  tax  one  iiutrument  employed  by  the  government  in 
the  execution  of  its  puwerH,  they  nmy  tax  any  and  ovory  other  in- 
strument. Tlioy  may  tax  the  mail,  they  may  tax  the  mini,  they 
may  tux  patent  riglitii,  they  may  tux  the  papers  of  the  cualom- 
houae,  tlifly  may  tax  judicial  pruecw,  Ihey  may  tax  ull  the  means 
employed  by  the  government,  to  an  cxeem  which  would  defeat 
all  tJio  cnda  of  government  This  was  nut  intended  by  the 
American  people.  Tltey  did  not  design  to  moke  their  govern- 
ment de)>cndent  on  the  States.  Gentlemen  say  they  do  nut  claim 
the  right  to  extend  HtoXe  taxation  to  Uicsc  objects.  They  liuiit 
their  pretensions  to  property.  But  on  what  principle  is  this  dis- 
tinction made?  T]i<«c  who  make  it  hare  furnished  no  reason 
for  it,  and  the  principle  for  whicli  tltey  contend  d(;iiie8  it.  They 
contend  that  the  power  of  taxation  has  no  other  limit  than  is 
found  in  (he  tentli  iicction  of  the  first  article  of  the  Coimlitulion; 
that,  with  reupect  to  everything  else,  the  power  of  the  i>tatt-a  is 
supreme,  and  admits  of  no  control.  If  this  be  true,  tlie  distinc- 
tion between  properly  and  other  subjects  to  which  the  power  of 
taxation  is  applicable,  is  merely  arbitrori,-,  and  can  never  be 
sustained.  This  is  not  all.  If  the  controlling  power  of  the 
8tat«s  be  cstnljlished,  if  their  supremacy,  as  to  taxation,  be  ac- 
knowledged, what  is  to  restrain  their  exercising  this  control  in 
any  ahapo  they  may  plcaae  to  give  it?  Their  sovereignty  is  not 
confined  to  taxation.  This  is  not  the  only  mode  in  which  it 
might  be  displayed.  The  question  is,  in  truth,  a  quration  of 
fliiprcmacy;  and  if  the  right  of  the  States  to  tax  tlie  means  em- 
ployed by  the  general  government  be  conceded,  the  deelaration, 
that  the  Conatitution,  and  the  laws  made  in  pursuance  thereof, 
shall  bo  the  supreme  law  of  the  land  is  empty  and  unmeaning 
declamation. " 

§  1043.  "  It  has  also  been  inaifited  that,  as  the  power  of  taxa- 
tion in  the  general  and  State  governments  is  acknowledged  to  be 
concurrent,  every  argument  which  would  sustain  the  right  of  the 


k 


tf  ife  (on 

tu  tW  8m«  bMka,  ndeoaU  a«t  prave  the  ti^  itf  tt»  . 
to  Ux  dw  RmIc  oI  dw  [JBtei  SMea. 

I  I'm.  "TV  Owrt  ba  fcMtoiul  <m  Ob  ■Ajeet  to 
Mil»ral«  oMaUtMioa.  TW  nask  Is  a  MBrietM 
0Mw  Imt«  as  povtr;  bf  Uxatfaa  v  oUntpbe,  to 
faia,  harden,  or  fa  tay  wmaaKr  eoatmt.  the  apentkos  «i 
•OBrtftatioMl  Istn  euMted  bf  CangrM  to  csrt  nto 
dM  pomn  TMtod  la  Um  gnml  fomaaatat.  Hub  is,  we  ttifc, 
dM  oaaraUabU  nmmgaBBw  o(  that  mtfatmaer  wtaA  tb* 
CMMtttetloB  bM  declared.  W«  sra  aaaiBaaal;  ol  ofcuaa 
Omt  dke  lav  paaied  bj  the  legialatim  of  Mairland,  fanpoaSar 
a  tax  oa  Um  Bank  of  the  Cnh«d  Ststea,  U  tmconetitDtiaoal  and 

I  lOf/*).  In  anoth^  ratfi  the  qa««tioa  was  raised  wbedier  a 
Hiak-  tiatl  a  cjfutitutional  autboritj  to  tax  slock  Istofd  far  liMUa 
to  ttu!  Un)l«d  States;  and  it  was  held  by  tho  Snprema  Court  that 

■  TW  itottrtM  *w  apf ■  i>  iJiiiiiiMid  bj  Uw  Bopnat  Omt  b>  •  bin  «*m,  mJ  4^ 
liW«i«lr  twArawL  OAon  •,  Aiak  of  tiM  ITBJtad  SMc^  «  WImL  &  ?«.  «t»  (» 
•m  I  1  Rnl't  CoHML  UeL  H  pp.  SU  l«  3tl^ 


I 
I 


POWKSa  OF   00KGBE88  —  TAX88. 


W 


a  State  hod  not '  (a)  The  reasoning  of  the  Court  wag  aa  follows : 
**  Is  the  atuck,  i»BU«d  for  loans  made  to  the  government  of  the 
United  States,  liablu  to  be  taxed  by  Stat«s  and  corporutiooB ? 
Congrrtw  has  power  'to  borrow  money  on  the  credit  of  the 
Uuitvd  States.'    Tlie  stock  it  iaaueft  is  Uie  cvidenco  of  a  debt 

1  WcaioD  V,  ThoCilyCoancUofCbwIartoD,  tPtton'kB.  M*.  im-Hr.  ChUtJuitiot 
Hanbiill. 


I 


(a)  Sm  BiuiV  of  Cmhhum*  «l  N«« 
Toiit.  3  Itli^ck,  6!0 ;  Ikiik  Tu  Cm.  S 
W«n.  SOO :  TliB  Biiik  P.  TliP  Uijroir,  7 
Wall.  IS ;  lUbk  n.  Thn  Supervuon,  7 
Vai\.  SO. 

Th«  gvoanl  principlM  dcdut-l  in 
M*C)iUooh  Vi  Hwyluiil  ««ra  tgnin  stipliwl 
In  D«bUiw  v.  Erie  Co.,  IS  Ptt.  liS.  II 
wu  [hera  hcUl  tlinl  ■  .Stulc  could  not  loTy 
a  taj  uiKiti  the  <omi>onution  tllowfid  bj 
the  tIaitfJ  SUIM  to  oii*  uf  Jta  «ffloin, 
which  compcQiatiou,  it  u  to  b*  ununod, 
wu  no  mora  tlioa  the  irniaa  mro  wortli, 
■nil  no  mora  Uwu  would  b«  tufielnit  to 
Mcore  ■  diligent  perionnHioo  or  the  oOi. 
Dial  dntl**.  And  It  hM  «Im  bwn  bald 
ootnpetmt  for  Ctmffmt  to  pravldo  thtt 
banliaoTBtDbednnderitieiuctiiiDiitsmay 
be  tAXti  \>J  the  fttatoa  to  ■  cfruin  txlrnt 
and  in  ■  parlimUr  w*y,  •ud  Dot  oth»r- 
vIm.  Van  Allen  «.  Aunon,  3  Wall. 
fi7S ;  Fvopla  p.  CoiuaitMoncn,  I  Wall. 
Ml  ;  Bradivy  r.  Ppota*,  t  Wall.  tiO. 

But  Slate  taxation  of  a  federal  Inttm- 
mentality,  a*,  for  inetanoe.  of  a  railroad 
whiah  it  «n|ilojed  by  tlio  goTernment  for 
it*  |iurpa«a,  ia  not  fmpliodly  problUtad 
where  it  doea  not  impair  tlM  naofulnMi  or 
etpabHily  nftuch  Inttmnaolato  ten-e  the 
goranmeut.  Tbomton  r,  Pauillc  Rail- 
Kad,  9  Wall.  S79.  Sn  Naliuual  Bouk  c 
CMnmonwoollh,  0  Wall  9SS. 

On  the  otbiT  band,  and  for  tho  aamo 
reaiona,  tbc  ihi|>n9nie  Court  bax  ducland 
It  iiKionipalenl  for  the  tTnited  SCatci  to 
fupoMt  a  ux  upon  iho  ulaiy  of  a  State 
offloer.  "  If  tlie  nienn*  and  liiAriimRnul- 
itiaa  MOfJoyed  by  [tbe  federal]  gfrtn- 
mant  ta  cany  into  operation  the  powraa 
granlHl  t»  it  art  ne«>iuBrl]y,  and  foe  tbe 
■aluof  w>U-pnMrratioii,***npt  from  lax- 


4tlMt  tr  Ha  Slat**,  why  an  not  thoat  of 
tho  Statot  difpending  upon  their  wtrnad 
powen  for  like  nawDi  eqnally  «unpt 
from  fodcml  taxation  I  Thnr  noimpdnd 
MlUanoa  i«  aa  «*»«nllal  In  tbe  ono  caaa 
aa  in  the  olber."  Tbe  Collector  r.  Day, 
11  WiU.  187.  And  Ibe  Sulc  couits.  ii|k 
on  the  muoninK  !□  BfCullocb  e.  Mniy- 
bud,  bavD  held  that  atamp  dntita  eould 
not  be  impoatd  upon  Stal«  proona,  WajN 
Ten  •:  Panl,  23  Inil.  270  ;  Jonea  o.  Ertato 
of  Krnp,  10  Wit.  seS ;  Flflcld  r.  Cloaa,  IS 
Mich.  SOS ;  Union  Bank  r.  Hill,  3  Cold. 
82S  ;  .SmiUi  s.  Sliort.  lU  Ab.  7«e.  Km 
upon  llie  tax  dooli  of  a  Stalo.  Sayloa  *, 
Davii^  33  Wii.  S2S.  Nor  upon  the  ofQ. 
tUl  bond*  of  a  itate  offloer.  Stale  r.  Ga»- 
ton,  SI  Itid.  I.  Soma  of  thaw  <-aiM  are 
refprrvd  to  with  approbation  by  Hi.  Ju*- 
tice  Clifford,  in  deciding  the  cam  of  Day 
V.  Bufllngtoa.  Bee  American  LawRevicir 
forOrL  U71.  p.  178. 

In  Vaulu  Bank  e.  Fnona,  8  Wall.  51^ 
it  wta  bebl  tliat  Congnaiioiul  laialloo  of 
State  bank*  of  iuue  to  an  extent  that 
would  pot  an  end  to  tbdr  rxiitence  waa 
eonatitutiooal,  nolwlUutandIng  it  wu  Im- 
poatd  for  that  Mipreaa  purpoMaud  not  lor 
revenue.  And  in  Cnndall  «.  Neradi^  t 
WalL  Si,  a  State  luc  npoo  carrien  of  {■•• 
aen{{en,  of  ao  much  tot  each  fMtenfec 
carried  out  of  the  StatF,  waa  held  void, 
hecaiuo  if  the  powtr  exiitol  to  impoae  it. 
It  might  b*  <iKTcl«ed  to  an  eiltnl  that 
would  iirMluda  tbe  guvrmniKut  fium 
tranaporling  iti  troopa  lbreu{[fa  the  Stato 
by  lh«  nHiol  modea,  or  ita  dtiMiii  from 
vlaltli^  the  Capitol  or  the  fedora!  offlcM^ 
when  the  State  Un«  mutt  be  cweatJ  for 
tbe  purpow.  Anil  Bpe  Minot  v.  Philadel- 
phia R  Co.,  S  Abb.  I'.  S.  S23.     a 


758 


oomnnmoK  op  tdr  cnttbd  nx-na.        [hook  m. 


created  by  the  «xerclM  of  this  power.  The  tax  in  question  is  a 
tax  upon  the  contract  nutwintini;  between  the  Rovenuncnt  and 
the  individual.  It  bcnni  directly  upon  that  contract  while  Hub- 
giftting  and  in  full  force.  The  power  operatea  upon  tho  uontract 
the  iimlant  it  is  framed,  and  must  imply  a  right  to  afTMit  that 
contract  If  the  States  and  corporations  throughout  the  Union 
pOHaeeB  the  power  to  tax  a  contract  fur  tho  loan  of  money,  what 
ahall  ancHt  this  principle  in  its  applit-ation  to  every  other  con- 
tract? What  measure  can  government  adopt  which  will  itot  be 
expoHod  to  its  inlliience  ? 

§  \04G.  "  Dut  it  is  anneeenaary  to  pnrsnc  this  principle  throngb 
its  divcntirie<l  application  to  alt  the  contracts  and  to  the  various 
opcratJons  of  government.  No  one  can  be  aelcetcd  which  is  of 
more  vital  interest  to  the  commimity  than  thin  of  burrowing 
money  on  the  credit  of  the  United  States.  No  power  has  been 
conferred  by  the  American  people  on  their  ptvernmt-nt.  tho  free 
and  onbordened  exercise  of  which  more  deeply  a0ucta  every 
member  of  our  republic.  In  war,  when  tho  honor,  the  safety, 
tlie  independence,  of  tho  nation  are  to  be  defended,  when  all  ita 
rciources  arc  to  be  strained  to  the  utmost,  credit  must  bo  brought 
in  aid  of  taxation,  and  tho  abundant  revenue  of  peae«  and  pro«- 
perity  mont  bo  anticipated  to  Hupply  the  esi|*encies,  tho  nrgent 
demands  of  the  moment  The  people,  for  objects  the  moat  im- 
portant which  can  occur  in  the  progress  of  nations,  have  empow- 
ered their  government  to  make  these  anticipations,  'to  Iwrrow 
money  on  the  credit  of  the  United  States.'  Can  anything  be 
more  dangerotts  or  more  injurious  than  the  admission  of  a  prin- 
ciple which  authorizes  every  State  and  every  corporation  in  tho 
Union,  which  poiuKsses  the  right  of  taxation,  to  burden  the 
exercise  of  this  power  at  their  discretion  ? 

§  1047.  "  If  the  right  to  impose  the  tax  exists,  it  is  a  right 
which  in  ita  nature  acknowledFres  no  limits.  It  may  be  carried 
t'l  any  extent,  within  the  juriftdiction  of  the  Stale  or  corporation 
which  imposes  it,  which  tho  will  of  each  State  and  corporation 
may  prescribe.  A  power  which  is  given  by  the  whole  American 
people  for  their  common  good,  which  is  to  bo  exercised  at  tlio 
most  critical  periods  for  the  most  important  purpoaeti,  on  the  frwe 
exercise  of  which  the  interests,  certainly,  perhaps  the  Iil>erty  of 
the  whole  may  depend,  —  may  be  burdened,  imjieded,  if  not  ar> 
rested,  by  any  of  the  organized  parts  of  the  confederacy. 


OH.  ZIT.] 


POWeSS  OF  COKGRBBS  —  TAZB3. 


T60 


§  1048.  "  In  a  aocietf  fonned  like  oun,  witli  one  sapromo  gov- 
ernment for  D&tioual  ptirposcs,  and  nuinoroiu  State  guvemmonts 
for  uUier  piirpnses,  in  oianj-  resiiocts  in<lc[wndont,  and  in  tlto  un- 
ooutrulltid  exercise  of  manj'  iuiportaot  powers,  occoitional  intcrfer- 
eneee  ought  not  to  surprise  u».  The  power  of  taxation  'm  one  of 
the  most  essential  to  a  Htate,  and  one  of  the  most  cxtvnsiro  in 
it*  Operation.  I'he  attempt  to  maintain  a  rule  which  ahall  limit 
its  e.\erci»e  is  undoubtedly  among  the  most  delicate  and  difficult 
duties  which  can  derolre  on  thone  whose  province  it  is  to  expound 
the  supremo  law  of  the  land  in  its  application  to  the  coses  oi  indi- 
vidoals.  This  duty  has  moi'e  than  once  devolved  on  this  court. 
In  the  performance  of  it  we  have  considered  it  as  a  ooocasarj 
consequence  from  the  supremacy  of  U»e  goveniinent  of  the  whole, 
that  its  action  in  the  exercise  of  its  legitimate  {towers  should  bo 
tree  and  unembarrassed  by  any  conflicting  powers  in  tti«  posses- 
sion of  its  parts ;  that  tlie  powers  of  a  State  cannot  rightinU;  bo 
BO  exercised  as  to  impede  and  obstruct  the  fre«  coutBO  of  thOM 
measures  which  the  government  of  the  United  States  may  right- 
fully  adopt. 

§  1049.  "  Thin  subject  was  brought  before  the  court  in  the  UM 
of  M'CuIloch  V.  The  State  of  Maryland,'  whore  it  was  tborooglily 
argued  and  delil>erate1y  considered.  The  questiuu  doeidud  in  that 
ease  bears  a  near  resemblance  to  that  which  is  involved  in  this. 
It  was  discussed  at  the  bar  in  all  its  relations,  and  examined  by 
the  co«trt  with  its  utmost  attention.  We  will  not  repeat  the  rea- 
soning which  conducted  us  to  the  conclusion  thus  fonned ;  hot 
that  ooncluston  was,  tliat  'all  sabjecta,  over  whidi  the  surercign 
power  of  a  State  extends,  ore  objects  of  taxation ;  but  those  over 
which  it  docs  not  extend  are,  uj>on  the  soundest  principles,  ex- 
empt from  taxation.'  *Tbe  sovereignty  of  a  State  extends  to 
everything  which  exists  by  its  own  authority,  or  is  introduced  by 
its  permiasion ; '  but  not  *  to  those  means  which  arc  employed  by 
Congress  to  carry  into  execution  powers  conferred  on  that  bo<ly 
by  the  people  of  the  United  States.*  '  The  attempt  to  use '  Uio 
power  of  taxation  '  on  the  moans  employed  by  the  government  of 
the  Union  in  pur^oanoe  of  the  0<:mKtittiiton  is  itself  an  abuse ;  bo* 
cause  it  is  the  usurpation  of  a  power  which  the  |>eop!e  of  a  single 
State  cannot  give.'  'The  r^tates  haTO  no  power,  by  taxation  or 
otherwise,  to  retard,  impede,  burden,  or  in  any  manner  control 

I  i  WbMton,  SK. 


760 


CON8TITCTI0N  OF  THE   TOITED  8TATB8.  [BOOK  lU. 


the  operation  of  the  constitutioniU  laws  eniictcd  by  ConRreea  to 
carry  into  vxtMiutioa  the  powers  veiit«d  in  the  general  gorem- 
mcnt.'  Wu  retain  Uie  0|jiniuaK  wliich  were  then  osprcMed.  A 
contmct  made  by  Hw  govvrutUDul  in  Uic  vxcrciau  oi  its  puwor,  to 
borrow  money  on  the  oredit  of  tho  United  StatM,  u  undoubtedly 
independent  of  tlie  will  of  any  State  in  wtiicli  the  individual  who 
lends  may  r««idc;  and  is  undoubtedly  an  operation  viwi-utial  to 
the  important  objects  for  which  the  government  was  vreatwL  It 
otiglit,  tjii-refore,  on  the  principles  settled  in  tlie  cum  of  M'CulIoch 
V.  The  State  of  Maryland,  to  be  exempt  from  Stul«  Luxation,  and 
oonsoqiiontly  from  being  taxed  by  corporations  deriving  their 
power  from  States. 

§  1060.  "  It  is  admitted  that  the  power  of  the  govcrnmest  to 
bon-ow  money  cannot  be  directly  opposed ;  and  that  any  law  di- 
rectly obstnicting  its  operations  would  be  void.  But  a  diittinctioa 
is  taken  between  direct  oppoutiou  and  tliose  measures  which  may 
consequentially  affect  it;  that  is,s  law  prohibiting  loans  to  tbo 
United  Stat«fl  would  be  void ;  but  a  tax  on  them  to  any  amount  is 
allowable.  It  is,  we  think,  impossible  not  to  perceive  the  inti- 
mate connection  whidi  exists  between  these  two  modes  of  acting 
on  the  subject.  It  is  not  the  want  of  original  power  in  an  inde- 
pendent sovereign  State  to  prohibit  loans  to  a  foroijfn  govGrnmcnt 
which  restrains  tlie  lef^slature  from  direct  uppositiun  to  those 
made  by  the  United  States.  The  restraint  is  imposed  by  our 
Constitution.  Tho  American  people  have  conferriMl  the  power  of 
borrowing  money  on  tlictr  government ;  and  by  making  that  gor- 
eminent  supreme  have  sliieldod  its  action,  in  tho  exercise  of  thta 
power,  from  tho  action  of  the  local  governments.  The  grant  of 
the  power  is  incompatible  with  a  restraining  or  controlling  power; 
and  tJie  declaration  of  supremacy  is  a  declaration  that  no  such  re- 
straining or  controlling  power  shall  be  exorcised.  Tho  right  to 
tax  the  contract  to  any  extent^  when  made,  must  operate  upon 
Uie  power  to  borrow,  before  it  is  exercised,  and  have  a  sensible 
inlltieiice  on  the  contract.  Tho  extent  of  this  influence  dcpendn 
on  tlie  will  of  a  distinct  govommcnt  To  any  extent,  however  in- 
considerable, it  is  a  burden  on  tho  operations  of  government.  It 
may  be  carried  to  on  extent  which  will  arrest  them  entirely. 

§  lO&l.  "  It  Is  admitted  by  the  coimsel  fur  tho  dofcndnnta.  that 
the  power  to  tax  stock  must  affect  the  terms  on  which  loans  will 
be  made.     But  this  objection,  it  Is  said,  has  no  more  weight,  when 


CB.  XtT.]  POWEUS  OF   CONGEtSBa  —  TAZHi  761 

urged  Bf^inst  the  application  of  an  acknowledged  power  to  gov< 
emment  stock,  than  if  ur^^  against  its  application  to  laiida  sold 
by  the  United  States.  The  distinction  in,  we  think,  apparent. 
When  lands  arc  sold,  no  connection  remains  between  the  |>ur- 
chaser  and  the  government.  The  lands  purchased  hpcnme  a  part 
of  tlie  maas  of  property  in  the  country,  with  no  implied  exemp- 
tion from  common  burdens.  All  lands  are  derived  from  tlie 
general  or  particular  (jovummcnt,  and  all  lands  are  subject  to 
tasation.  Lauds  suld  are  in  tlio  condition  of  money  borrowed 
and  repaid.  Itti  liability  to  taxation,  in  any  form  it  may  then  n»- 
sumc,  in  not  ()u<.<stiuued.  The  couuection  between  the  borrower 
and  the  lender  i»  dissolved.  It  is  no  burden  on  loans,  it  is  no 
impediment  to  the  power  of  borrowing,  that  the  money,  when  re- 
paid, loses  its  escmptiou  from  taxation.  But  a  tax  upon  debts 
due  from  tlic  govcnimcnt  stands,  we  think,  on  very  different  prin- 
ciples from  a  tax  on  lands  which  the  frorcntmcnt  has  sold.  The 
Federalist  has  been  quoted  hi  the  argumi-ul,  and  au  elixjuent  and 
wclUmeritod  eulogy  has  bet- u  b<;stowcd  ou  tlie  great  statesman  who 
is  suppoaod  to  bo  the  author  of  the  number  from  which  the  quuta- 
tioo  was  made.  This  high  authority  was  also  relied  upon  in  the 
case  of  M'Culloch  i>.  The  State  of  Maryland,  and  was  considered 
by  the  court.  Without  reiieating  what  was  then  said,  wo  refer  to 
it  as  exhibiting  our  view  of  the  sentiments  ospressed  on  this  sub- 
ject by  tlie  authors  of  that  work. 

§  1052.  "  It  has  been  8U])posod  that  a  tax  on  stock  comes  witli- 
iii  the  exceptions  stated  iu  the  cose  of  M'Culloeh  v.  The  State  of 
MurA'laud.  We  do  not  tliink  so.  The  bank  of  the  United  States 
is  un  iuatrumeut  essential  to  the  fiscal  operations  of  the  govern- 
ment ;  and  the  power  which  might  bo  exercised  to  its  destruction 
was  denied.  But  property,  aocjulred  by  that  cor]>onition  in  a 
State,  was  supposed  to  be  placed  iu  the  same  condition  with  prop- 
erty acfjuired  by  ou  indiriduol.  The  tax  on  government  stock  is 
thought  by  this  court  to  bo  a  tax  on  the  contract,  a  tax  on  the 
power  to  borrow  money  on  the  cre<lit  of  the  United  States,  and 
coosequcQtly  to  be  repugnant  to  tlic  Constitution." 

§  1068.  It  is  obeorrsble  that  these  decisiune  turn  upon  the 
point  that  no  State  can  have  authority  to  tax  an  instrument  of  the 
United  .States,  or  thereby  to  diminish  the  means  of  the  United 
States,  used  in  tlic  exercise  of  powers  confided  to  it.  But  there  is 
uo  prohibition  upon  any  State  to  tax  any  bank  or  otiior  corpora- 


I 


762  coNmnmoN  op  the  dntted  biaibs.        [book  m. 

tion  created  by  its  own  matboritj,  unlen  it  bas  restrained  itself, 
by  the  charter  of  incorporation,  from  the  power  of  tazatjon.' 
Thia  subject,  however,  will  more  properly  fall  under  notice  in 
some  future  discuaaions.  It  may  be  added  diat  Congress  may, 
without  doubt,  tax  State  banks ;  for  it  ia  clearly  within  the  tax- 
ing power  c(mfided  to  the  general  government.  When  Con- 
gress tax  the  chartered  inatitutionB  of  the  States,  they  tax  their 
own  constituents ;  and  such  taxes  mnst  be  uniform.*  But  when  a 
State  taxes  an  institution  created  by' Congress,  it  taxes  an  inatru- 
ment  of  a  superior  and  independent  aorereignty  not  represented 
in  the  State  legialataro.  (a) 

>  Proridenee  Bank  a.  BiDingi,  4  Fettrt's  B.  614 
•  VCdlloch  V.  Hujluid,  1  WhnL  B.  S16,  485. 

(a)  8m,  howerer,  Thompwu  v.  Ttn&a  Tt^^mmA^  g  WalL  679 ;  NatloiiBl  Btuk  •. 
OammonwMlth,  9  WslL  SfiS. 


APPENDIX. 


I 


APPENDIX. 


'  Wbile  tbis  irork  ma  pasnng  throagh  the  preM,  Fre»id«Qt  Jubon'H  Proclamation 
of  the  lOth  of  Decembor,  1S32,  concerniitg  tlis  [thsD]  recent  ordmanm  of  South  Caro- 
lina on  the  enbject  of  the  tariff,  appeat«d.  That  document  coDtiitis  s  most  elaborate 
Tiew  of  terend  questtons  which  hare  been  diacnued  in  this  and  the  following  volume, 
especiallj  respecting  the  BUpreinac;  of  the  Un  of  the  Union,  the  right  of  the 
judiciary  to  decide  upon  the  constitutianalitj  of  these  laws,  and  the  total  repogaancjr 
to  the  Conatitutton  of  the  modera  doctrine  of  nuUificatioD  amerted  in  tliat  ordinance. 
As  a  state  paper  it  is  entitled  to  rerj  high  pntiw  for  the  clearness,  force,  and  eloqnenw 
irith  which  it  hsa  defended  the  rights  and  powers  of  the  natiooal  govemmeat.  1  gladlj 
copy  into  these  pages  eome  of  its  moet  important  pMsages,  aa  among  the  ablest  com- 
mentaries ever  offered  upon  the  Conatitntion. 

"  Whereas,  a  convention  assembled  in  the  Btate  of  South  Csrolina  hare  ptssed  aa 
ordinance  by  which  they  declare  'that  the  sereral  acts  and  parts  of  acta  of  the  Con- 
gress of  the  United  States,  purporting  to  be  laws  for  the  imposing  of  duties  and  imposta 
OQ  the  importation  of  foreign  commodities,  and  now  having  actual  operation  and  effect 
within  the  United  States,  and  more  especially '  two  acta  for  the  some  purpose  passed  on 
the  aath  of  Hay,  1828,  and  on  the  llthof  July,  1832,  'ore  nnauthoriied  by  the  Consti- 
tution of  the  United  States,  and  violate  the  true  meaning  and  intent  thereat,  and  ore 
null  and  void,  and  no  law,'  nor  binding  on  the  dtizans  of  that  State  or  its  officers ;  and 
by  the  said  ordinance  it  Is  further  declared  to  be  unlawful  for  any  of  the  constituted 
authorities  of  the  Stste,  or  of  the  United  Statsa,  to  enforce  the  payment  of  the  duties 
imposed  by  the  said  acts  within  the  same  State,  and  that  it  ia  the  duty  of  the  tegiala- 
tuie  to  pass  anch  laws  as  may  be  neceaaary  to  give  full  effect  to  the  said  ordinance  : 

"  And  whereas,  by  the  said  ordinance,  it  ia  further  ordained,  that  in  no  case  of  law  or 
equity,  decided  in  the  courts  of  said  State,  wherein  shall  be  drawn  in  question  the  valid- 
ity of  the  said  ordinance,  or  of  the  acts  of  the  li^latiire  that  may  be  paseed  to  give  it 
effect,  or  of  the  said  laws  of  the  United  States,  no  appeal  shall  be  allowed  to  tlie  8a- 
preme  Court  of  the  United  Statea,  nor  shall  any  copy  of  the  record  be  permitted  or 
allowed  for  that  purpoiMi,  and  that  any  person  attempting  to  take  such  appeal  ahsll  be 
punished  as  for  a  contempt  of  court : 

"  And,  finally,  the  said  ordinance  decloree  that  the  people  of  South  Carolina  will 
maintain  the  said  ordinance  at  every  hazard ;  and  that  they  wilt  conildeT  the  passage 
of  any  act  by  Congreas,  abolishing  or  closing  the  ports  of  the  said  State,  or  otherwiae 
obstructing  the  free  Ingress  or  egress  of  vessels  to  and  from  the  said  ports,  or  any 
other  act  of  the  Federal  government  to  coerce  the  State,  shut  up  her  ports,  destroy  or 
harass  her  commerce,  or  to  enforce  the  said  acts,  otherwise  than  throngh  the  civil  tri- 
banals  of  the  country,  aa  inconsistent  with  the  longer  continuance  of  South  Carolina  in 
the  Union  ;  and  that  the  people  of  the  sold  State  will  thenceforth  bold  themselves 


^-m- 


-*■!  ihiHi,  HiMiliil^ii|ii»in  iilii  ilii  |ii|li  rfTiiH  1 

to  Ub  bm  If  tk^  oMMiy.  MbMntf*  if  to  Owrihatktt.  Md  W*i«  i«  ta  alyKt  te 
Jlinliwrf  IkUkiM.  — 1k«rakMwtM.eMn]wMtfl«ipAti^cnteM^  W 
Mr  Mm^  «bha«  aaj  «thr  liH  ta  Mile  ihw  tkn  tfaaa  «f  jalriiiriMi  »i  •  om- 
■M *Mi^  Ifc Wgll  > MgMMty  Ml^i  M  «  ^ariMi  fliiy  w  <WH.  — tfcl  Ma*4 

DatM.  yairta  to<«k««.  rtfcfc,  pgJiMiJ  fcy  mt  hiff?  Cf^HlllM.  ^  Wo^ta  m. 
b)r  ik  liTw  rf  HMna.  to  •  «tt»  e(  fWip^ity  «  koMs  Md  bich  OMiiMrtiM  atn^ 
nnij',  if  mr.  *>|m11«1  la  tke hHtotj </ ■itiiiii  Ta  fimni  tUi  faoad of  ms poUii- 
m]  ililMB>  ftiM  liiUwMi^  toMMteM  MriBhte  tfcji  MM  «l  iiiIimI  Immt  m4 
pMip*«1iy,  «arf  w  )mUI^  Um  waUMei  bj  MIm^cWhn  bam  wpij  hi  »«  1, 
Avvuw  Jicuoa,  rtiiMitfi/iTIi  riiffil  llTrt^  tanrtiiinin  |iiif  ii  ill!  i\i\mt 
J'MOAaATWV.MAlaf  Mjvicwtaf  iha  ONrtilBiiM  mJ  !•*■  mAaHs  to  tbt  mm*- 
—  iiaHrt^lh<«MwttMrfg«^CWiMM,Ma  to  ikaMMM  (kqr  Imm  |Mt 
ftnklBMMalnlbMi,4Kfari^tfa«Mam«Uthd>qr«aiM|«b«Mla  pwM^  nrf, 
l||iill«g  t»lfc«  ■■*iT«M<Nt  m4  frtriitfaM  rflfc*  fwpK  —a  tkaafilMi 

^OMKn  llul  IBMt  iMntaUj  l«nlt  b«*  M  obOTVMM  o(  tlw  4kUt«B  oT  th*  ( 

■■  Huiri  door  «imU  rai«dn  •!  m*  MiUnK  ■•(•  Am  U»  aMNin  «r  il 
witk  *feM  I  aa  Mr,  or  Hj  btf^Aar  ba  bmmii,  tat  fnmtriM^  tha  paM*  of  the 
tTnka.  iMihttht  axacnticni  sf  tW  b*i.  Bat  tW  twpcalag  MpMt  wUoh  appawtiM 
ha*  a«BM«4  in  thb  OHt,  b;  dotUng  itwlf  •illi  Sou  aatliant;,  aad  (Jm  dmy  toMnC 
wUch  Um  tmofti  «l  the  Dnhed  Stato  man  ill  Iwl  tn  taartoti^  a  i«nrt  ta  tfrc^tf 
nMMun,  vUU  than  b  a  beiw  thai  aaTthiag  viU  ba  jirUM  t«  wa*»«lag  aad  nMi» 

Md  dw  MtiM  «f  Um  tIcvh  i  (BtcTtdao(tUiiiMpartMtqaMliaa.MwdlHadkttaet 
MMilillnii  ofihaeMWirtkhmy  WMaaf  faiy  wMtaqalfaBiatapWMfc 

"IWontlMvraUlbmdad,  BatMtkfawMMiibUtl^t  aT  ndili^  Mt*  which  aca 
]iUlnt]r  uKoMttWOMd  Md  too  mnaiariw  i»  ba  cndniad.  b«t  m  the  ttnage  pocUlaa 
Uwi  »Bj  nan  tutc  BMj  not  only  detlvt  aa  aet  of  CoogrcM  vdU,  hat  ptaUbit  it*  pj»- 
enUmi.  —  Ihal  ikwf  najrdo  tUi  ooMMmtly  with  dbaONarimilen,  —that  ibt  tnMTon- 
itniottM  af  itwt  taatnmnit  pmdu  a  8t«U  to  Mata  fu  placa  to  tht  CbIm.  wad  ]rptl« 
lMi»d  by  no  Mhrr  of  iu  la«a  tham  thaae  It  OMy  dietMa  to  eonndar  a*  ooBrtitntioiiaL 
It  I*  tnw,  Ibry  add,  Ihat  lojnatify  tUaabroptiaaof*  law  it  nwtba  palpably  oeatMry 
to  ill*  CniMlltatjon  ;  bat  It  i*  arldaat  Ibal  to  pT*  tb«  riKbt  of  HalNlnff  laa«  of  that 
dia>Tri]>Ilon.  oonptnl  with  th*  uaroatmlM  licbt  to  drddc  what  lawi  daatr*  ihat  char- 
aitar,  U  to  Rlra  ttt*  pawir  of  nabdng  al)  lawv  For,  »•  by  iha  tbtofy  then  U  no  tp- 
fiti,  tha  na*on*  illignl  by  tb«  Sui«,  goad  ar  bad,  muH  fnnO.  If  it  •honU  U  aU 
tkat  |«b1(e  opinio*  i*  •  nfllwDt  chtck  aRiiaat  the  abaM  of  thia  pawar,  it  aaay  h* 
aaktd,  why  It  Usot  doMiNrf  ■  aiifflclent  gnafdaKabiHIhapaaBmaaraBnicoBAlMlioMl 
•d  by  CtegiaM.  Tbm  li,  howtrat,  a  natrai&t  la  tlili  la«l  eaia  whldi  nakat  ib*  a«- 
anmad  poaar  <f  a  Suia  Ben  liMMndbh,  aad  wUtk  4om  not  asiat  la  th*  otb«r. 
TImo  an  tara  aiifMla  rram  aa  wneonatUational  aot  paMid  by  Coagna^  —  on*  ta  tha 
Jadlrfaiy,  the  other  to  Ibe  people  and  the  Sutca.  Then  i>  no  appeal  fnm  tbcBula  da- 
fUoM  la  tbatty,  and  tha  pnrtkal  IDnalnllon  abowa  QtM  Die  conn*  arocloaad  agaiSM 
an  ipfilimka  to  laTiaw  It,  both  Jadgca  aad  Juion  bbg  •worn  to  iImmIs  ia  ita  bvor. 
Hat  rnuoolBg  M  thit  lultfect  U  wpcaflaou.  whan  oat  aodal  oointiaGt  is  cspnai  tannt 
daelana  that  the  law*  of  tha  Uniad  Statea,  the  OoutitatMO,  aad  titaiiea  made  a&iar 


jlfpbkdix. 


767 


h,  an  tbe  uiimn''  Uw  of  thi  bad ;  and  lot  itmMr  CMtioo  addt,  *  thU  Uw  Jajgw  la 
•very  Sum  tluJl  Iw  bound  tfairtby,  Kaythiii^  in  \ht  Mnxlitutlon  et  )air«  of  aay  SlAto  to 
tliii  MDtrar?  nocwilliitanilu^.'  Aud  itina]rbaunrted,  wilhiMit  rMrofrrfalBlicn,  ttiU 
tra  M«rmtir«  govtntOMnt  oonM  cxUt  witbaut  «  •unilu'  ptoTiaan.  Leak  lor  ■  monwiit 
to  the  cotueqatBcs.  If  Sonth  Carolliu  oaniidan  Uig  rrvtnuc  Uwi  no  constitutional, 
and  hat  a  riglit  tn  prrrttit  Ch«tr  ucvciillon  in  tbe  pott  c^  Charleilon,  Itirnt  vanU  bt  a 
<la«r  coostUvtionU  «l|)««tii>ii  to  tbrir  tM>llaettai  io  every  utiier  port,  awl  n«  tvrewM 
naUba«oUwtcdaajwb«ic;  tor  all  trnpcuta  miul  betqaal.  llis  no  uuvtoi  t«  repeat 
an  iweoaatjtntlonfll  law  i*  no  law,  to  loag  aa  tlio  qnoatioD  of  iti  legality  ia  to  ba 
ltd  by  the  State  ItMtir ;  fov  evury  law,  operating  ii^urloiuly  upon  any  IcmsJ  inlunnt, 
wfll  lit  prrbapa  tboii^t,aiidartaiBly  rcpraaenlal,  at  uncoaatilwlloiial,  and,  a*  baa  bran 
ahown,  there  ia  no  qipotL 

"ir  thai doetrina  had  bean  eataWiahedat  an  eaitLcrday,  the  Union  wonld  hare  been 
ditaolTid  la  Ita  l&tancy.  The  eiclae  lav  In  renaaylTuiia,  the  embargo  and  aon-wter- 
conne  lav  in  Ihv  liaattn  8ut«w  the  (arriagi  tax  la  Virginia,  men  all  deemod  Bpcon- 
atltntional,  aad  mn  Btore  nneii«al  b  their  opoMlon  than  any  at  iho  kvt  ne*  eom- 
plained  of;  but  fbrtnnaicty  none  of  than  SLUeadiuovered  that  tbey  had  thfriiiht  now 
daimn)  by  South  Carolina.  The  war  into  vtiielt  »e  vn*  toro«d  to  ui]ifott  the  dignity 
of  tlie  nation  and  tbe  rl^thta  ef  onr  dtlxctti  might  bare  ended  in  defoat  and  dia||>*ce, 
iaUMd  of  Tldorv  and  liunoi,  if  the  Stataa  who  enrooaed  it  a  ftiinona  and  unrowtitn- 
Uonal  meaaai*  lud  thought  ibfy  iMMMsd  the  rig^t  of  nnlliryinK  the  act  l^  which  It 
«aa  deelansi,  and  denying  anp[dua  fer  to  pnNaention.  BatiUy  and  tUMqaally  aa  Iboa* 
■neaaum  bort  upon  aanra)  mamhtn  of  tlw  Dnion,  to  tbe  Ugiilatmta  of  Mone  dbl  thk 
tfleiant  aitd  peactablf  retnoiy,  aa  it  i*  tallad,  angcatt  Itadf.  Tbe  diaoovtty  tt  thk  iaa- 
pottant  faalnni  tn  our  C?on*tltaliatt  vat  itaarrrf  to  the  pitaent  day.  To  tho  atalannaB 
of  6«nh  Ounlina  belcagB  tho  inrentian  :  and  upon  the  dtiMBt  of  that  State  will 
ufbitniiately  bH  tba  «vil«  of  redndnff  it  to  pcaetLoih 

"  If  the  docUlni  of  a  Suta  vM«  opon  the  iawi  of  tbe  Cnb>o  autiM  with  it  iiilamal 
•tI4«ko  «t  Ita  Inpeaclioable  ahantdity,  our  comtitntiooal  lurtory  will  alto  alTool  aban- 
daat  pmof  that  it  trauld  have  betai  repndiated  with  indignation,  had  it  been  pmpaaed 
to  form  a  featiire  in  our  govprnaMfiL 

"  In  our  colonial  itate,  ahhon^  dependant  on  another  ponr,  ««  very  early  ootw 
•idffad  onratlvaa  aa  oennccted  by  oemmon  bitar««t  with  oach  Mhar.  Leagnaa  vn« 
Ibnnid  for  totamaa  delcMO,  and  bafon  (be  DeolataUon  ofladapandtwa  wa  wm  knowii 
ia  oar  aigicgiUe  tfaaractn  as  Tn*  rsiTKu  CaiAKiBa  or  AmbiUc*.  That  dethire 
and  important  atop  ni  talten  jointly.  Wo  dmlaied  enntlrta  a  nation  by  a  joiat,  not 
bgr  a**«cal  acta  ;  aad  whan  tha  tenia  of  oar  oanltderaUon  won  rtdnoed  to  Ibrm,  it  wa* 
1b  that  of  atoltmnlaigDttcf  aarwal  Stattt^  by  wkleh  Ihey  agienl  that  they  we«ldcol- 
l«cth«ly  fonm  one  Batton,  (be  ilia  parpoaa  of  ooodnotlng  aome  Mrttin  doMoetto  oonona* 
all  fcidgn  ralatiaDa.  In  the  Inatrwment  fanning  that  Cnini  it  bund  an  artiste 
dodam,  that  '  every  fttala  ahall  aUdo  by  the  detamunatiotii  of  Congiata  oa  all 
Ion*  whkh  by  that  caatMrntiMi  tkonid  ba  aabnittad  to  Ibaan.' 

"Under  the  cotafmloiatiun,  tlien,  no  Slate  oonM  lagally  ansal  a  dedtian  of  lb«  Cmi- 
grtai,  «r  nfoM  to  aabmit  to  ib  eieootioa  i  but  no  proridon  vaa  node  l»  m(«n«  tfcoa 
dtddtai.  Congnaa  made  rcqniaitlona,  but  they  wen  not  oeoifliad  vitb.  Tba  gDt>> 
tnuawt  Maid  not  opetata  on  indlvidaal^  Tbay  had  no  jmUdvy,  no  meaat  of  eot 
Itctlag  nranne^ 

'■  But  the  dcfMrts  of  the  csorederatioa  Mad  not  ba  datalled.  U«d«T  It*  opMation  *» 
Mnid  aoarody  be  ealled  a  nation.  V!b  bad  ndtbir  proapority  at  hoM*  nor  maaldwa> 
tiMi  abroad,  nia  atata  of  thinfi  could  iMt  ba  eadiirad  ;  aad  am  ptawnl  happy  Oon* 
«iWtai«MiBRDad,b«lfcRnadin*ilB,irtbklbMld«^ifauyM*dib    Uwaattmttd 


J 

U(A|ta 

^ 


fijr  iiiiporuiit  objwiA,  thit  uc  uiKniaMJ  in  llie  pnamblA,  Midc  in  the  mm*>  and 
th«  atitbcoity  of  the  people  of  tb»  Uaited  Sutoi,  trboie  d<lo|C»t«  frintcd,  u>d  wi 
CDBVFittioiii  npprovtd  it.  Th«  nod  InpNtRM  amonK  thra*  otgtcU.  (hat  whkli 
pUurd  flist  In  rank,  on  irli(tb  *11  tin  otb«t«  nat,!^  'tojbrm  a  nun  par/al  imiam.'  V' 
h  tt  poHlUr.  that  tma  if  there  wctb  no  eipms  prariAai  (tTlnf;  >npwii<ijr  to  tim 
CoMlUvtioa  and  lawv  of  the  Unjled  Statw  orer  tboM  «(  the  Btatea,  it  oaa  b«  eon- 
crirrJ  that  mi  JMtrumeDtmaikfM'tteiiatiNaeaf  */uiiia)F<i*Mnpn:tU  HirisN'  ttaa 
tlutt  of  tlio  oonlnUratloa  omU  ba  to  coiiatmctnl  hy  the  aaembitd  wimImii  of  tmt 
oowUij  H  to  Mbatituta  tor  tluit  oonradNatinn  i  tcnii  of  KOToninanl  d*F«nt)«nl  for  iu 
«iiit«iN  «a  Iha  local  intarott,  the  laity  t^rit,  of  •  Blau,  or  of  a  pnrraiting  factiaa 
fu  a  State  T  ET«r7  Bnn  «f  pbua,  nmopfaitfkatMl  nndcratandJDg,  wbo  bsan  tkn  igi 
tian,  win  Hiw  tuck  aa  aii*v«r  aa  will  pmem  the  tJntoa.  Meuphriical  nlitlctr, 
pnrMiit  ci  an  impMCtkaUa  dMory,  amlii  akmo  have  dtviMil  obb  tbal  it  <alealatnd 

"  1  oontUnr,  ibn,  tbe  power  to  anno]  s  law  tS  the  TTnital  State*,  amuned  bj 
Bute,  iatempntitlr  iniA  lit  eiiiltn«t  </  Iht  fnwa,  emIraJiaed  erpnalf/  bg  Iht  IdUr  0/ 
Ai  Cimlilitiim,  •cwiM'Jbrtedty  ifjipMi;  ^iKaa«itf(St  wilA  <nnrK'''^jP''<"i'*M 

"  AfUr  thit  gmaal  view  of  tbe  teading  pHntiple,  we  nuut  tXMWiat  the  paHii 
apjilicalius  el  it  whieb  is  made  in  tbe  ordinaoce. 

"TIm  ptiomhlD  rMti  it«  juMifteatian  on  tbtaegromdi :  IttKanei^  Mabe^  tbaF 
tbe  obnoxioD*  lam,  allboatch  they  pnqwn  to  In  iun  tea  tailing  nvenne,  wtre^  In 
natU;,  intanibd  far  llie  profoottoD  «f  nanufklBrt*,  which  pnrpant  it  aawrtu  to  Iv  an- 
oonititutiosii]  :  tbat  tbeopnation  of  thea*  law*  b  uoopial;  that  the  anoiuit  nbnl  liy 
lb«m  t>  gmttrr  tban  ii  Ri|aired  by  the  wants  of  tlie  gorennnanl ;  aad,  fauDy,  that  tbe 
{««i:«pd>  are  to  be  applied  to  objecta  an&utborixnl  b^  tbe  Oa«*titiitio«.  Tbeic  «n  the 
onljr  ramra  alttgad  to  JiiMiiy  an  npra  ofipadtion  to  ilia  bwa  of  lb*  ooanliy,  asd  ■ 
tbient  c(  aroedmc  from  the  Uoion  if  aay  atteonpt  diould  be  marie  to  Mtforee  ibenu 
BM  ritVulU  a«knowlD(lgta  tbat  the  hw  ia  qnration  waa  [oaied  under  a  power 
praaaly  etreii  by  the  CoiMtltBtloB  to  lajr  and  ooltect  intpoiti  t  but  iti  caawtitu' 
i«  drawn  in  qnealion  flitra  tb«  autfto  of  tboM  who  paMsd  U.  tIowc««r  apfaiMt 
purpoae  tniy  be  in  tbe  preaent  caae^  nolhlnit  e*n  be  moea  dangnMis  tbau  (■■  adiadl 
poiltiMi,  that  an  nneonitttntioaial  pnrpow,  entertalaed  by  tbe  niembna  obo  aaeenl  Ib. 
law  nnartMl  under  a  nonetitutianal  power,  ahaU  make  tliat  Uw  roid  :  for  bow  ii  II 
piiqiMe  to  be  amtUiiiad  I  Wbn  Ii  to  nake  the  aRotie;  1  How  often  nay  bad 
]ioM«  be  bltclr  impulol  t  In  bow  aaany  caaei  aie  they  oMenled  by  Uw  fmfeailoaef 
In  bow  many  !•  no  doeliration  of  motive  made  t  Admit  thit  dodritM,  an4  ynu  ^*e.  I« 
the  Stnto*  BB  nneontrolled  tight  to  dedde  ;  and  tirny  kw  m»T  be  ananlled  undrr  thii 
pt«ti>st.  If,  thnrffon,  the  abtnrd  anddangemoa  dottrine  ahoold  be  admilteti,  that 
Stale  may  annul  a»  nMOoalltutlanal  law,  or  on*  that  U  decnu  tneh.  It  will  Mt 
to  Iha  prroent  caaiL 

"The  next  olgwtioa  i*.  that  tbe  taw*  in  qwation  opoikte  unniDally.    TbEa  otgi 
■My  be  made  with  tnitb  to  every  law  thai  bat  boca  et  can  be  fed,     Tbe  wbdoia 
■Ban  navor  y«t  eonttivad  a  ay«t*m  of  taxation  that  wonM  opatatawJIh  pprf(«t  ejnalf 
If  th«  sne^ua)  ofwrntion  nf  a  law  makM  ti  unoonililiillanBl,  and  if  all  law* 
deacriptieo  may  be  abrugaled  by  any  Stale  (M  that  eauw,  tbrM,  iiid^M,  1*  Ibn 
Ca«ut)tntliMi  nawottby  of  tbe  ■lightest  eBbrt  for  iu  ptnerrnlion.     Wc  have 
relied  00  it  aalhe  twrpetoil  bond  of  owrCnion.     We  hare  tecdvr<j  it  u  'h-  work 
the  aesrfflUed  wMotB  «r  the  nation.     Wa  hava  muted  to  it  m  :  -f 

aniety  in  the  «tonny  tints  d  melUct  wltL  a  bndgn  bit  domaui 
(oil  with  aaerad  awe aalhe palladium ofonrlOMAiaai  and.  erlib  aU  tbe aolcmniti* 


IPPRtTDIX.  769 

I  otlMr  OUT  Utm  tai  fortnoM  htn  and  our  hop*  of  hi[>- 
fixMM  ImalUr,  Id  iU  dthoo*  uid  inppert.  Wtn  as  tuUUkin,  my  countiymon,  in 
•tUobing  thU  imporlaim  ta  tb*  Conatitntion  of  oor  rauntrjr  I  Wu  our  duvotioa  fmii 
to  tliB  wntclwd,  ineffiQuat,  cluiiu]r  contiimica  wbkli  thii  new  (ioctriiw  would  make 
it  t  Did  wo  p1odt[B  oanelToi  to  tbo  luppmt  or  an  ury  nathing.  ■  bubble  Uuit  miut  bo 
blown  amy  by  tlio  flnt  Imoth  of  diMlEtctioD  (  Wu  tbia  mU-iattnjUig,  rUionkry 
tboory  iha  work  af  tbo  foofoiuid  olatoiinoB,  tbt  udtad  (xtriot^  to  whom  (be  luk  of 
wutitiitioiuJ  rtform  wu  ialnisMdt 

"  Did  tbo  nomo  of  Wuhiagtou  mictiaii,  did  tb«  Stata  delibcntelj  ntiSj.  nch  to 
■nomolj  Ui  tbo  biitory  of  funduDrutil  IvKiiJttiaD  I  No.  Wo  vert  not  iniitait«n. 
Tbs  Uttor  of  tU*  itnat  iiutmnioiit  h  tnn  fram  tbU  i«dU*l  ball ;  11*  lonpi^t''  diraatlx 
contndiata  tbo  itnpatatloii ;  Ito  oplrit,  iia  ovidcst  laUat,  oonlndiou  H>  No,  wv  did  uot 
«IT  1  Our  Comtitutioa  dos  not  oontMD  tbo  abmrditr  of  giflBg  powwr  to  makr  la«r* 
and  UDotbi-r  power  ta  reaUI  them.  Tbo  Mg«,  trh««o  muaorj  wiU  ^wmji  be  rcrer- 
cnoed,  biTo  pTni  ni  a  piutiol,  uid,  u  ibc;  ha]>ed,  ■  pormuicDt  anutttstiaul  oonii- 
pocL  Tbn  r&tlior  of  hia  eooiitrr  did  not  oiBi  hU  r«Tf  rod  Duna  t«  lo  |iol(atila  «i  *b- 
cunllly.  Nor  did  th«  Statn,  wban  thtiy  xvenJly  ntlfiod  it  Jo  m  undar  Uw  impnauoii 
kbit  t  veto  oa  the  Uwi  of  the  United  Statfw  wu  nasrved  to  them,  or  that  the;  contd 
OMtdai  it  by  implioatioa,  Search  th«  dobatm  in  all  thtir  waroiijoaj,  examine  the 
^MChoaof  the  moit  cealoiu  oppoaei*  of  FcdMsl  aotborily,  look  at  tbo  anundmaiiM 
IbalwoN  propoatd, — tboyoioall  idlaiil;  not  aajrllaUo  altered,  not  •  vot«  gfvtai,  not  a 
notion  made  lacotTad  Ibe  rxfilicit  ■uprenMcr  giran  t«  tbo  law*  of  Uw  Union  over 
tlioee  of  tho  Stntoa,  or  to  abow  that  imfdioation,  M  il  now  contended,  oonU  defeat  Ic 
Ko,  we  bare  not  cmd  I  The  Conalitntion  b  nill  the  objact  of  oiu  re*erenca,  tbo  bond 
ot  ouc  union,  ear  dofenca  in  danipr,  and  tbt  uurot  of  otir  pnnpi<rliy  in  paace.  It  ifaalt 
daMead,  u  we  hire  r«<.'eiTvd  it,  iinooTTUiitMl  by  lophutiul  aonttruction,  to  enr  poetir- 
bj  1  and  the  •aoriNcc*  of  local  intetnt,  of  State  prejuilicci,  of  iMmonal  animoeittM^ 
that  wen  made  to  bring  It  into  axfatenci,  will  e^^  be  imlriottcaUy  ollend  for  it* 
•uppoct. 

"  The  iwq  nrmainin^  objettion*  made  by  tbo  ordinutoa  ta  tbeaa  Uwi  air,  that  tha 
fuma  iutentlHl  to  be  raivd  by  them  are  graater  tban  an  laqnlred,  and  thai  tb*  piODixJi 
will  be  nncenitttutionally  cio  [Joyed. 

" The  C^uatltutlen  huKivnn  npreaely  toOsngteM  the  ri^tof  raUuK  Taranne,  tud 
af  detRBiuiing  the  *uin  the  [Miblic  Fii|p!ncie>  will  tnjaire^  Tlio  Slatea  bare  no  control 
aver  thaennuaof  tbti  tight,  other  thin  that  whl«h  reealte  tram  the  power  of  changing 
the  nprewnteUTee  who  abuee  It,  and  tbo«  (inxmre  mlreea.  Congieea  nay  nndonbtadl; 
nbuae  tbia  diaoretionary  pow«T,  bat  Ibo  lame  mny  be  anld  of  others  with  whioh  they  are 
vattod.  Yet  the  diaerotien  mait  exiat  aomcwhero.  The  Oonitltutlon  be*  given  it  to  tba 
Mpnaentntirec  of  all  the  people,  checked  bj  the  repretentatiMe  of  the  Stalea  and  by 
the  exeeutlTe  powtr.  Tlie  Sonlh  Oiroliaa  eonetnuition  givee  it  to  the  kgialaiure,  or  the 
coLivt'iitioD  of  a  aingle  Statay  where  nMther  the  people  of  the  ditTerent  Stntea,  nor  the 
SUtca  in  tbrir  arpanto  oapadty,  nor  the  chief  mimletnlc  e1n:t<<d  by  the  p«o)dr,  have 
any  leprearntalion.  Which  la  the  moat  dbcrett  dtapeaitlon  of  the  tnwn  I  I  do  not 
aak  yoa,  fellov-riliiotiii,  which  it  the  MnatitutJonal  dlapeaitioa ;  thai  inatrQUMnl  apeaki 
a  Inngnage  not  lo  be  mieandewtoad.  Bnlif  yen  wen  aeaemblod  in  genotnl  tonvsnlloa, 
wfakh  would  yon  think  the  aafat  dopotitory  <jt  tbla  diictetionaiy  power  in  tlio  laat 
raaoitl  Wonid  you  uM  a  rJnnin,  iflTing'  it  to  tacb  of  tho  State*,  or  would  yonaanctlon, 
ih"  wiae  jiroKririona  almdy  matU  by  yonr  OonatitDtion  (  If  thieaboiild  be  thenwnltof 
your  ddihcnitioni.  when  prondinit  for  the  fulUM,  an  yoa,  can  yen  be  imly  lo  riik  all 
that  w*  hold  'leer,  tn  tslablUh,  for  a  leBpoeHy  and  a  local  pnipoat,  that  wbiob  you  cuuat 
vol-  I.  —  49 


770 


tTEKDlE. 


Mknowledip  to  bs  dMtraetira  tad  vrm  alniiid,  m  a  RiMnl  proTMoa  I  Carry  oat  Uw 
taomqaaatm  of  tUi  right  imud  in  tb»  dUhrant  SMm,  ud  foa  miMt  pM«*iT«  th<t  Uw 
«ldi  yoor  Modoct  pmratt  M  tUa  d^  voBlil  nmr  irbenaTfr  any  Uw  o(  tbe  tTnltvl 
SUtCB  diiplautd  any  of  lb«  StaUa,  and  that  «•  (hovhl  •oon  omm  U>  be  a  natkm. 

"Tho«rdinnoe,iritli  thoonu  knowledge  of  tha  lUtnn  that  cbamictcriaw  albnRM 
alft*olion,tdUjonthattha|c<M(aliof  Iba  tax  wUl  b«  DnocnittnitkflaUr  fpfilled.  If 
tUt  conld  ba  McertaiiMd  with  e«ru(nty,  the  olgNtiaii  mmU,  with  nM««  profvioly,  b* 
iwrted  Ibr  the  lav  to  applying  the  procceda,  but  aorclj  cannot  be  oiged  agaLnit  tba 
lawi  loTjing  tfae  dnty. 

"Hmmuc  theatlc^Uonacantalnid  in  tho  wdtnancf^  BxamlM  tbtta Mrionaly, Ky 
(Ulow-cUttana:  JndxDforyouiMtvoi.  1  appval  to  yon  to  dettnnuw  wbethrr  Uniy  an 
to  cImt.  ao  Mnvineing^  aa  to  Iran  no  danbt  of  th«ur  carrectB««;  and  «mt  U  yon 
ihevld  coma  to  thla  oRndotioo.  ho<w  Ita  thay  Jnitl^  Ih*  ntkUm,  imtnMn  omna 
whid  yoa  arc  dinettd  to  pnnuc.  BnTiaw  tlUta  ot|iwtlM>i,  and  lb*  oeadoifana  dnwn 
btn  than,  ouo*  more  What  an  thay  1  Brciy  bir,  lltM.  for  nbing  nrtnuie,  aeooid* 
bg  to  the  SoQtb  OuoUna  ordinanoe,  nay  b*  rightftiQy  annaUed,  rnika  it  be  w  bamtd 
tt  no  law  tTvr  will  or  can  ba  fiaacd.  Onngitai  bavo  a  right  to  p««  Ian  far  nliing  a 
levmiw,  and  neb  State  haa  a  right  to «pfO**tfaHr«MCUlkn, — twft  ri^htadin^ly  «p- 
poaad  to  aaeb  other ;  and  y«(  U  thb  abwmUly  auppoacd  to  be  oonttbwl  in  an  initrv 
nmt  dnwn  lor  the  axpTM*  pnipaa«  of  anjdhig  ooUiiiona  brtwcen  the  flute*  and  Uw 
gmanl  go* ernMcnt.  by  an  atatanbl*  of  A»  mart  mligbtaBed  ttaUiBca  and  pnraat 
patriota  erer  (mlmdied  for  a  rnnlht  piupoM. 

"  In  vain  have  IhoM  B^nt  daeltrad  ibal  ('«BgnM  ihall  h«v*  power  to  ky  and  nDeel 
tuaa,  datiat,  Impoeta,  and  welaw  ;  in  tain  have  they  proTidnl  that  tbcy  riwU  ban 
pow«rt()|iaaUwi,  wtiieh  ebaU  ba  net'—iry  and  proper  to  earrr  tboao  powwa  Into  a»aw- 
lion;  that  thoas  bnri  a»d  that CvMlltiillM)  ahall  baiba  'mpanM  lawortlMlaad,uil 
that  Iha  JudgM  in  awry  State  (ball  ba  bound  tfacnby,  anylbfug  in  the  eonMitaUaa  aad 
laai  of  any  State  lo  the  centiary  notwilbitandin^'  Id  vain  bar*  Iba  peofda  of  tba 
•Huial  8tat«a  aolcnmlj  Mitat)on«]  tbeae  profiriona,  Mada  tbon  their  puaoionnt  law, 
a»d  bdividnaUy  aworn  tomppart  thaM  «h«na*«r  thny  wcMcaUadon  toaKaenia  any 
dBoa.  Vain  tmT!«loii«  I  inalfM^tnal  ratlrlcttona  I  vtia  ptobnatkna  of  oaihe  (  aiai-nble 
modkeryof  ItigitUtion  '.  if  th(>  Iian  majority  of  the  rcAm  in  any  one  Stale  My.  on  a 
laal  or  mppnaad  knowledge  of  tb«  intrnt  whh  wUdi  a  hw  liaa  bm  paiaeJ,  docUra 
tbcantdna  fno  from  iu  opnatiDn,  —  aay  beiv  it  givia  too  Uttle,  tbere  too  mncb,  and 
epMattt  nwaqqalty,  —  h*r*  it  lulTara  articloi  to  bo  fr«o  that  ought  to  b«  taud,  —  th*M  It 
bucaa  thane  Ibal  eu^ht  to  b*  ha^  —  iu  tlii*  caa*  the  prwwda  are  inieiidad  to  ba  apptM 
to  pnrpoaaa  which  wa  do  not  apfaow^  —  in  that  tba  Buoml  ndaail  La  Mon  tJiatt  is 
wm&tcd.  Cof4;i««.it  ia  tne,anlnT«atodby  thaOoMttitntiaaarith  tbari^tordMiding 
llian  i|iiial1rini  arrnTillnH  to  their  Hqad  diacMkn ;  noognM  b  oompoatd  of  Ibe  rap**- 
MDtodTM  of  all  the  SUtn.  and  of  all  tibepaoplaef  all  the  Stataa  i  bat  we,  part  of  tba 
ftafh  tit  ooe  Static  to  whom  tbe  0«oa(ihiUan  baa  glnB  no  powaron  tba  mhjoct,  ftota 
wbomitliaacxpraaalylakenitawaj,  — wth  wbohnwaobmnly  ^teed  tbat  tbta  Uoatti* 
tatleMahall  bt  onr  k«,  ■— wa,  ntaat  of  wboMhaTeawcm  to  rapport  it,  —  wenMrataw- 
gate  this  law,  and  awaar,  and  feroe  otbaw  to  awaar,  tbat  it  ahallnot  ba  obeyed;  and  wa 
dotbift  MttManaaCongNiabavanorla^t  topaMTOchlawa^— lUawedoBotaUega, — 
bnt  becanae  Ibey  bare  pawad  than  wllb  ImpTOpaa  riawa.  Tliay  are  anoooaUlarlaaial 
ftoo  the  tootirca  of  iboea  who  paaatd  thorn,  whkb  *«  can  nanr  with  oattaliity  know  | 
ftom  Ibelr  anoqnal  operatioo,  altboogb  tt  ia  nnpoaiblaw  fnn  the  natnm  of  things  tbat 
thpy  ahovld  ha  tqnal ;  andftoni  Uudiipotdtiaa  wbich  wepnainnaMiyboinaikartlMir 
proeaada,  altboogb  that  diapotUian  baa  not  baot  daelamd.    Ttk  b  tbe  plain  »™-iri')g 


I 
I 
I 


Anmm  TTl 

ef  Um  erdinntMk  In  nUtka  to  U<n  wtiieh  It  kbtogiUa  for  ilk)!*!  nncomtUatlonalUy. 
But  ii  dow  not  ttaji  tlieiv.    It  ttftalt,  ia  wpnM  tWmJt  aa  tnipotttni  (wi  «f  U>«< 
Mitulioii  iWr.  ukI  of  Uw»  pancd  t«  give  it  «ff«ot.  whiih  tun  ncTor  bma  uOtgfA  to  I 
lUMBrtitnlMiul.    Tha  Ccnulitiitkm  doelairs  tktt  tha  ladidU  powers  of  tha  Unileil 
BlalM  axtMiil  lo  oum  uWng  Widar  Um  kwi  of  tha  Unilod  Statn ;  ami  tbat  web  Un^ 
tiM  CBMttatiai],  and  twatiwt  ahiJl  be  panowiiBt  In  tJiu  Utat*  oOTitiluiUoiu  anil  U«k 
Thajo^iaiy  act  proNnbai  tba  noAe  bjr  vbich  the  caw  Bay  ba  fcniigbt  bttbit  a  omirt 
of  III*  lIiiit«it8UIaib)ra|ipcaL  wbana  SlatoliibniitlabaUikdiUapiMt  Ibi*  provinaii  J 
of  th«  Conuitution.     Tlui  ordinaoaa  iladano  that  than  ahall  be  no  afipMil,  nalcoa  tbo  1 
SBMa  law  |*njDOuiit  to  (fa*  Cooatilotlon  and  lawi  «f  iIm  Unltad  Slatea,  loreaa  Jmlff** '' 
anil  jsRira  to  max  [hat  tliex  vUI  diiiRKanl  thoir  [iroviiioiii,  and  ovrn  mdiM  It  fimni 
ka  a  *ultor  to  attdinpt  rriif-f  hj  afpcaL     It  farther  dcciotw,  tlml  it  aliall  not  b»  lawful 
tm  tha  aulbistitiw  «S  Uw  Unllad  Sul«^  or  of  tbat  SUtti:,  to  onforce  th«  (layMOkt  of  datiea 
bnpovd  bjr  the  r«*aDUc  lawa  within  III  liiulta. 

"  Here  ia  B  law  of  tho  lTail«l  Stal«e,  iiot  n««  pntmidad  to  b«  niMMtatilutiiMial,  n- 
pcalod  by  Iho  aulliarjty  ot  a  imall  majority  at  tbo  TWton  ot  •  «ng1e  8tAt«.  H*a  ii  A 
pr«rl*i4ii  of  tltfl  Con^tilnlioD  wlilieb  la  aoleinnly  abn^alcd  by  Uie  midc  aiitbority. 

"Oa  aucb  axpoaiUons  and  T«•Mnlng^  tha  onlinanra  )(roiuida  not  only  an  aMcrtioit 
of  tbo  tight  to  aanul  tha  lawi  of  which  it  ooiDplaina,  but  to  Miforoi  it  by  a  thr*«t  of 
Moediikfl  from  tho  Dnion  if  any  attempt  i*  mada  to  aiKut«  ibion. 

"  TUa  right  tviaMdaiiiltdnndfroiD  tfca  nature  of  the  i-'onaiitiitian,  which  tbcyaay 
it  a  eorapaM  batwaan  aoT«r*l;[a  Suim,  who  hava  pmerml  tlioir  wttolc  aoraMKUty.  and 
thanfora  *r«  antgMt  to  no  luperior ;  that  bicauui  lti*y  uiada  tha  oetafMt,  thiy  oaa 
break  it,  whnn,  ia  theii  opiniaii,  it  hu  bmn  dpp&rt«it  (rotn  by  tbe  other  Slata,  FulW 
aioua  ai  tiiia  nourxi  of  nwoiiiug  ii,  it  enliiti  Slate  ^id>r,  and  Audi  advocaloa  ut  tho 
lionait  pr^adi^ea  of  thoM  wlm  Lara  not  atadiad  tlio  natnto  of  our  govennmit  nffi* 
eiently  la  mm  the  tadioal  error  on  wbicb  it  niti. 

"Tho  ptoplo  ot  tho  Uitltad  Sutai  forawd  Iha  Conttitatlon,  acting  thraufih  th«  Slalo 
IqtlalatarM  in  making  tho  oonipact  to  mmt  and  diacua  iti  pranriona.  and  atting  in 
wparal*  conmtiena  when  th«y  ratiSod  thoM  proriiiaiu :  but  the  tcnna  uiod  in  ita 
oouitruotUiD  show  it  to  ba  a  goreramcnl  in  which  the  people  of  all  tho  Stats  colW 
liraly  an  rvpracntod.  Wo  arc  okn  rtovht,  in  tha  ohoio*  ot  Praaidont  and  Vlo(-Pr«al- 
danb  Here  tba  Stataa  hava  no  other  fcaey  than  to  direct  tho  modo  in  which  tha 
ntaa  dull  bo  glfn.  Tha  oandldatta  haviiig  the  a^o  iiy  of  all  the  votea  at*  oboam. 
Tha  oleetoia  of  a  m^ority  of  SHate*  may  have  givon  thalr  rotco  far  one  oandidatit  and 
yet  another  may  bo  ohoasit.  Tha  poopLa,  than,  and  not  tha  Stalaa,  ara  rcpnoentad  1« 
the  ciemtire  bnuioh. 

"In  thn  Honaoor  RopraaantatiTaa than (■  this dill«renm.  tliattho|>Mf>la<i(onaSt«tp 
4o  not.  aa  In  tha  caw  of  Pr«iident  and  Vtw-Pioniknt.  all  vote  fi>r  tha  hbc  oOcoa. 
Tlw  people  o(  all  thaStaUa  donot*«ta(iiir  all  thomemhen.  nuh  Stata  cUetlng  it*  own 
ta|MacntatiTa&  But  thb  cnato*  DO  oatarial  dintinf^ticm.  When  choatn,  thojr  an  all 
WfWaantatirn  of  tha  Cnited  6tatt^  not  rtTmatntotirnt  of  lli*  )ianiouUr  Stala  (Mm 
whciwe  theyoonie.  They  are  paid  by  the  tTiuted  Btala^not  bytheSteto;  not  an  they 
aoeoontable  to  It  tar  any  ad  dono  in  tho  pcrfomuitco  of  their  Irgiiklivo  fiinetiona ;  and 
how*>«r  they  may  in  prantintt  aa  it  ia  iJiaIr  ilnty  to  do,  «ao*iilt  and  pnftr  tha  intMCOa 
tt  Ifaatr  partionkr  MnMitnent*  when  thigr  coma  in  eoitfil«t  with  any  etho'  partial  or 
looal  intOMt,  yet  it  it  thai  first  and  hlgbcat  duty,  a*  nf  ream  lata  tta  of  th*  Untlad 
StalM,  to  (foBott  th*  fMoral  ffeod. 

"ThoOmatimtianortlie  Unlinl  SlalM,  ihpn,  ronna  a  pMminear.  and  not  a  la^pia  | 
and  wtif-thir  it  be  formed  by  oooipaot  Irptwotn  the  fitatat,  ot  in  any  otbar  nuwnar,  ita 
chaiwcter  la  tha  Mine.    It  it  a  govcrumeat  in  whkh  aU  llw  peopto  an  npamind. 


773 


APPENDtZ. 


which  opawtcs  dtnellj  on  the  pcAt^e  tpdiridul);,  not  upon  thfSUUs;  tliey  ntained 
•II  th«  jiowtr  ihcj  Aid  not  graaU  Bii(  Mtk  State,  baring  wfrwily  putod  wJUi  *o  nway 
poMM  aa  to  Miialitut«  joinity  witk  Um  oUin  SUM  %  nngla  utiMi,  unnot  from  that 
period  pouts  uijr  rigtit  to  vKctlc.  bocouM  nwk  •kchuom  Aim  nM  bnak  a  iMfiM^  bat 
■Itatroji  theanily  of  a  iutU>ii;aii<l  any  iqjury  to  that  onltrb  nut  only  atnaoblrkieh 
w«nU  (Mult  train  tha  «oiitm«Btian  of  s  eomjNCt,  but  it  it  an  otttoee  iffulMt  the 
wbotc  DbIob.  To  «y  lliat  wy  State  niy  at  iilaMnn'  aen^e  froo)  the  Union  uiti>mj 
that  the  I'liilxl  8Cat«a  an  &M  a  Ditioa ;  bcoiiui  it  would  Ix  a  aoletiui  to  cont«i»d 
that  any  fan  of  a  (MtJoa  miglil  diwolvr  it«  cuRnKtian  vith  the  oth«r  partiv  lo  thfdr 
ijgurr  m  min.  without  oommiltln^  any  affimca.  SnvMten,  IDla  aoy  otbft  nvoiatioouy 
a>:(,  niay  U  morally  juilUinI  liy  lh«  rxlmnity  of  oppwwaon  ;  but  to  tall  it  a  <oii>ttlu- 
lioual  right  ia  confciiudiiig  the  mtaoing  of  tcmu ;  and  can  ooly  h«  dc«e  thiaa^  gtom 
«mt,  or  to  dMvire  Ihoae  who  aic  willing  to  amril  a  rlfiht,  bnt  would  ftata  hafare  thny 
made  a  KTolutiau.  or  incnr  the  pr^naltim  conaaqiwnt  on  a  fiulura. 

"  Btcaw*  tb«  Uaion  wat  fononl  liy  ceonpatl,  it  la  mbi  tb«  partfa*  to  that  ooin|*ot 
may,  whan  th«y  feel  ihcmotlvHt  ^grieved.  d«prt  fraoi  it ;  bnt  it  i«  (oocuely  bfoaiui  it 
ia  a  compact  tliat  thty  McnoC  A  moifact  ii  aa  agnonMit  or  UMding  oblij^tion.  It 
may,  l>y  it*  Umu.  luvn  a  unciion  or  penalty  Cor  tla  brtaoh,  or  it  may  koL  If  It  oea- 
tataa  no  wnolion.  It  niay  be  titcken  afth  no  Mhet  ooiiatqiMace  thui  luotal  guilt ;  if  It 
har*  a  unctioo,  tht«  the  tnvoch  ineura  ibie  deiigmtad  or  isfilied  poalty.  A  ki^pia 
bet«««a  indqteadent  Bation*  generally  baa  no  nnetioa  otfaw  than  •  naral  one ;  or,  if 
It  dionid  contain  a  ptnally,  aji  thrr*  ii  no  oommon  Biperior,  tt  cannot  ba  enforcal.  A 
^ireniiDmt,  on  the  uoiittary,  tluny*  haa  a  tanetlon,  «X|naa  or  ImplM ;  and  in  o« 
caM  it  b  both  nemararily  iiapliod  and  eipiwaty  ^*—.  An  attempt  by  fatM  of  anna 
to  dtatio;  a  gonnunent  w  an  olTenci^  by  whateria  meam  th«  coDatitational  coatpaot 
may  htr«  bMn  fonnrd  ;  and  nth  govcramtct  hat  the  right,  by  the  taw  of  adf-d^ftaicn, 
to  paM  acta  fur  puuiahing  the  oirrudtv,  unltaa  that  t%hl  it  nudlfiRl,  rMlt«l«»l,  or  i»- 
nuned  by  the  cowtitational  act.  In  «iu  lyaWm.  although  tt  it  modiftad  in  the  ewe  of 
twaaaa,  y«t  aollMirity  m  ex{«euly  gina  to  paw  all  lava  uihl— uy  l«  oany  i(*  powtn 
Into  «4hct,  and  nn^  tLli.  urant  praviiioB  haa  boon  made  for  pnnishii^  acta  wfaleh 
ohalrwt  the  due  Hiaiibititniliou  o(  th*  law*. 

"It would  aRin  mpttfluoin  taaddanytliing  tosbow  the  natnia  of  tkamton  whi'^k 
connoda  na ;  but  a*  enonoooa  «piiiios»  on  thii  sntgcct  are  the  fbmihliaa  of  (bdriaiN 
the  moat  diolriKllre  to  our  pcatc  I  miwt  giTt  aoma  fsttbca  developaiaBt  to  my  rien 
on  thit  lulyMt.  No  ana,  Mlow-citimu^  Iw*  a  MfllMr  ibtwmkc  for  tha  wiimid  (ifbti 
of  the  Btat«a  than  the  raag;i<lr>t«  i*ho  now  addreaaca  yoB.  Koono  would  make  graaMv 
pcnonal  Mcrifioea  or  oDiaial  uctfioui  to  defend  tlirm  from  TioUUoa :  hnt  e^ua)  esn> 
mxtbotalcra  to  pmitnt,Dnth<ir  part,  on  imprDpt«inUrf>renni>{Ili,oriTaamptiomor, 
111*  Hffhta  tlioy  have  TMtad  in  ihe  aaiion.  The  lino  ho*  not  bnn  to  dlMinctly  drawn 
••  to  ardd  ilcaibu  In  *om«  «a*M  of  tha  ann^bw  of  powir.  Men  of  the  beat  ialmtMna 
■■d  aoundmt  (lews  may  dUfer  in  tMr  conatraetloM  of  aama  pan*  otf 'the  OooaUtotl«n  ; 
hut  thNe  are  othm  on  whicih  diapaawowale  rvBoitiM  can  bar*  M  doahu  Of  thb  sa* 
lure  sppran  to  be  tha  OMuned  right  of  atcndon.  It  nata,  aa  we  hare  aeoik,  on  th* 
allt^td  ii»dlvld«il  Mnntgnty  of  lb*  Statai,  and  on  thnr  having  braed.  in  thii  aoToragn 
capacity,  a  tovipaci  which  la  ollad  tha  OoMtUatloD,  rnio  which,  beoiuae  tbry  mad*  it, 
they  hare  the  right  to  seonl*.  Bulb  of  iWaa  pcaltkra*  are  ammroca,  and  aome  ol  tha 
•ignoMttbi  to  jam*  them  aa  han>  btan  anUolfoiad. 

*■  T^  SutM  aannlly  ban  aot  cetaiMd  ibttr  a«tin  Kitera%tity.  It  hat  l««B  thowa, 
that,  in  bKomiag  parts  of  a  nilion,not  wtmbanof  altago*.  th«y  aairti-jid<red  Baay  af 
th«ii(Bnitial|wta<f  aovfrelitnty.  Tha  right  to  make  treaties  d«Utc  war,  levy  tuw, 
«md»  cicUiiTt  J«dtd«l  and  Irxlilativs  powign,  wan  all  of  than  fnattkna  of  lortr^ca 


APPENDIX. 


778 


power.  Tba  Stato,  then.  Tor  all  th«as  Jupartaiii  pnTpocM,  imt*  tv>  longer  BcirtMiga.j 
Tht  ollegiBOca  of  tbdr  cilivnii  mw  tnuufcmd.  In  Ibe  lint  iiutuiot,  to  the  gorcran 
ut  Uw  Unilad  tit*tMi;  tbuy  btcunv  Aaarioko  dtLccno,  aiul  on>gd  ohodwiice  la  Uie  Con^ 
•titittioB  of  the  Urjitcd  Sl«tai  and  to  U«»  made  in  couformily  witk  tJio  (lottvr*  vo 
ia  fiiiiniMi  Thi>  Uit  pontina  baa  not  Wn  and  cannot  be  dcoitd.  Ilov,  thim,  eaa 
that  State  )w  Mid  I«  t>«  UTCMignand  bidtpcniivnl,  whoiwrliUrntoo'tubodwnca  loU** 
not  na(te  bjr  it,  and  wKow  in^{btr»l«  an  avoni  to  diirq^aid  thow  ktrx  fbta  Oirj 
eonw  in  oonttct  with  tliou  |«i(ad  bjr  asotbar  t  What  ibowa  ooaiJiuiTclj'  that  tlir  tilatM 
aUBOt  b*  laitl  to  ban  rnervcd  an  undivided  voTFitJ^ly  ut,  that  llief  sxpicudjr  ■ 
Hm  right  to  panbb  traaam  ;  not  trauon  agunat  tbeir  npatal*  power,  but 
agaln«t  tfa«  ITniied  Stalcii  TicMon  is  a>i  oirnnce  apUiut  tvtinifiity,  and 
nuat  t«iid«  with  Iba  pavnr  tn  pnnlah  it.  But  Ibe  nwrrBd  rigbta  of  ibe  ttutw  ara  not' 
lev  Mcred  baoaUM  thaf  han,  for  tholr  comtDoa  intettst,  nadc  tba  gnnoral  govaratnetit 
tba  dapoaitory  of  th««e  powen. 

"  The  unity  of  our  |«titiMl  character  (u  hat  her*  bcou  ahuiru  for  anotbar  purpaic) 
«pinm«Du«l  with  ita  nrj  oibrtaBoa.     Undar  tba  tOfal  gavnniunt  we  bad  no  tfuat^i 
duiactcr;  our  oppodtlon  to  ita  opprMtkina  fa«g^  a*  Curntu  CuLi>niKiL     W«  wattl 
the  t'KITICO  Stath  under  tba  eonEadetation,  and  tba  naiu«  tat  ptrpftxMni,  and  thai 
union  rendartd  mon  perfect  b^  tha  Fedanl  Coutitution.    In  none  of  th«  atagia  did  ] 
vra  coiuideT  ouimIt«9  in  any  other  light  than  ai  forming  one  nalioD.     Trmtiiai  «nii  atll- 
ancea  were  made  In  tlio  lumo  of  all.    Troop*  mm  niMd  for  tha  Joint  dafunrh     Hnw,  { 
than,  wfthaQ  tbeaajiioofk,  that  andarall  obangaaof  onrpuiit!onwi-  hod,  fordmigiuli^l 
parpoat^  and  with  defined  powrn,  nraattd  naliono)  goirnnmenta,  —  how  ia  it.  that  ths'j 
motl  parieot  of  thoK  anvenl  modes  of  nnioa  ahould  now  be  coniidorvd  u  a  mete  le 
thtt  may  be  diiaolf od  at  pleaminl    It  ia  from  an  atniB  of  trmu.     'OompacC'Unaedl 
irnoQynieua  with  '  iMgae,'  altliougb  the  true  term  ii  not  employed,  bn^iua  it  would  al^ 
onoa  ahow  the  fallacy  of  Ibe  reaooning.     It  woulil  not  do  to  lay  that  our  Coiutitnlica 
««■  only  a  league,  but  it  la  labored  to  prove  it  a  compact  (whlrh  in  oat  latM  It  la), 
and  than  la  argue  thai,  a«  a  itagaa  <a  a  oompaet,  arar;  compact  betvran  nation*  mattJ 
of  courae  be  a  luagun  ;  and  that  from  mob  an  Bng^nment  tfttf  aovaralgit  povn  ha*  M 
ri(tht  U>  mcnle.     But  it  baa  bna  abMrn  that  in  thia  lenae  the  Siatea  are  not  aovrrMgiifi 
and  that,  even  if  they  wore,  and  the  national  Conititulton  hitd  been  fomuil  by  compact 
there  would  be  tio  right  in  any  one  State  to  cxonnrala  Ittclf  from  lu  obligation*. 

"  So  obvloua  are  the  muoii*  which  forUil  Ihl*  aeorulon.  that  it  ia  ueeiaBaiy  ealj  to 
•Jluda  l«  them.  The  Union  wa*  formed  for  the  benefit  of  all.  Ilirai  produced  by  bib* 
tual  •Bcrifieea  of  internrta  and  opiniona.  Can  Ihoao  taorifiea  be  recalled  I  Cu  tfc* 
Stalm,  who  ma«n»i<iinii>ujily  autreiidcrn]  their  title  to  the  Territorita  of  the  W«al,r*<att  { 
the  grant  I  Will  the  inhabitanta  of  the  inland  8tal**  •fme  10  pay  the  dutiee  that  maf 
bo  impnuvl.  without  ihoir  oaient,  by  ihoao  on  tba  Ada»ti«  or  tbe  Quit,  fot  their  own 
bravflt  I  Slintl  there  b*  n  free  port  in  one  State  and  oneroua  dutie*  in  another  I  !Ift 
one  belierea  that  any  right  cziita  in  a  aingle  State  to  involve  the  othnra  In  tbra*  and  | 
oountloe  other  eviti,  «0Dtrary  to  the  engtgemanta  aolamnly  mada.  Evtcy  ou»  tnuiit  I 
thai  the  other  Statn,  in  aelf-ilebQCR,  mn*t  i^ipM*  at  all  hanrda. 

"Thte*  are ibaallemalJvet  that  a»  preanittd  by  theoonvtntion  t  Airqical  of  all  tha  { 
acta  Ibr  midng  rereiue.  leaving  tbe  gonmment  without  the  mcana  of  aup|)ort ;  or  aa  ' 
aoquie«e«uo*  bi  the  diaaolution  of  our  Union  by  llie  tnecadon  of  one  of  Ita  niembet*, 
Wlion  the  flrat  was  pmpoaed.  It  waa  known  tliat  It  could  not  be  liMenad  to  for  a  miv 

L  It  >u  known,  if  fon^  waa  applied  te  oppoae  the  oxi-fulioD  of  thr  law^  that  it 
be  repelled  by  R>roe  ;  (hat  Cbmcreaa  could  not,  without  involving  ilwlf  in  dUgiica 
and  tha  oountry  lo  min,  aoetde  to  the  propoaition  :  anil  yet,  if  Iliin  ia  not  dune  on  a 
(IveD  day,  or  if  any  attempt  I*  made  toaxaente  thelawi,  tlw  State  i^  b;  the  ordinance 


1       aoqui 
[      Whei 

mt 


774 


APPBKDIX. 


dc«Und  to  b«  oQt  of  ths  VnbM.  Tk»  m^Joritj-  of  ft  Mnmitiim  MwmUtd  for  tbx  par- 
poM  turn  illciat*i1  tbme  temu,  or  ntber  tU*  k^ccOm  «f  all  UnM,  in  Ibe  Mnu  of  tlu 
peojilo  or  Swith  C^nlim.  It  la  tnio  Dim  th«  fp>*«niM'  of  Uis  Slat*  ipoiks  ot  tha  nib- 
IDiMioao(tlieiTgnev«ii«MtoaomTi>iitlnnur  all  theSuto^  vhick,  beasya,  tbe;  'iiin- 
cmly  and  onxiouilr  Mck  and  ihairg.'  Yit  thu  obri«iM  and  conMitutkaial  maJn  of 
obUiuing  the  acUM  of  the  <iih«r  Sutce  on  Uie  conitnicHoo  oS  tha  Ftdnal  can|Met,  ud 
uucDduiK  it  if  cmiMaarT,  kaa  nenr  b«en  MtemiitMi  by  thorn  wlio  bant  nrgnl  tba  8t«t* 
on  to  tliu  datnictfTc  moMOM.  Th*  Stau  Bright  bare  pnfwaHl  to  rail  (or  a  ^Mnl 
MOTaittkm  to  the  athfir  StalM ;  HidCottgrait,  ifaniftdeiitiMnibcraf  tbuncoMHRMl, 

moat  bavc  callnl  It.     But  tlio  first  maguttata  of  Soutb  C^rdlliia.  wbcn  ba  iiiij iil  a 

bop*  tbal,  '00  a  revinr  fa;  Coagreoi  mid  tho  fonctlomrfM  of  tha  Rtncnl  gov««nHiaal 
of  tbe  merit)!  of  tha  cantroitnj,'  miRh  *  ouTiventfan  will  ba  anxnttd  to  than,  mua 
hav*  known,  ttixt  ndllitir  CoogrMH  iior  any  fiiDctioniiy  of  tho  gnnnra]  gorcrsmntt  haa 
authority  tc  oiU  >uoh  a  convcntioD,  nnlcu  il  be  ilrmuidid  W  tvo-thinla  of  tba  StatM, 
nia  mKKistlan,  then,  it  anolhtr  inalaneo  of  tha  tocUm*  inattoDtkn  to  tho  prOTirteila 
of  tho  OntiMltntion,  (rithwhicb  this  cridia  baa  b««D  Bmtly  bnrried  oa  ;  orof  tlioaunspl 
to  [mmude  the  people  that  a  conititntional  remedy  liad  bmn  tou^l  and  nfaatd.  U 
the  l^fpaUturr  of  South  Carolint '  anxioualy  d«ir* '  a  general  oonTtntian  to  eooriikr 
theli  oomplatBU,  why  han  Ihny  not  madii  applicatjon  for  It  JB  thtway  theCoaulitutioii 
points  out  t    Th«  aaMtUon  that  Ibey '  varutmtly  Mok '  it  li  ompkuly  MgKilml  I15  ibc 


(o)  Thi*  dorament  Ii  nnilnstood  to 
hare  bfen  jeepntrd  by  the  Moinent  jartst, 
FJnnl  [.ivlnK>lon,  Hnnt'i  Life  of  IJr. 
iiii;rtaD,~  371  I  Paiionli  LIfc  of  Jaoktoo, 
III.  40«.  It  wlU  not  b«  inapprofout*  to 
pho*  bMtdo  ItoitTMl*  from  tho  InaiigUKl 
Addno*  of  Fnatdent  Llncofai.  Mnring  tba 
Mme  ground; — 

"  It  i*  wTriity-tw«  fMM  dMO  the  fint 
fnaoguntien  o(  a  Prtoidont  anilar  our 
national  Conatitntion.  Itaring  that  li»e 
fifteen  dlftnent  and  greally  diattngniahed 
clCliuin*  bava.  In  wcowjIom,  odniniaMred 
th«  MiMutiro  branch  of  lb*  nonnunaiiL 
They  hire  eowluetal  ft  (brangb  m*ay 
fttUi,  and  generally  with  great  wioww. 
Tet,  with  all  tbla  acope  for  preotdeKt,  I 
BOW  entrr  npon  tho  Kma  taak,  for  tha  hcfaT 
oonillliitinnal  t«m  of  fonr  ywori^  vn4a 
gnat  and  peculiar difioaltj.  AdiBni|rtiaB 
of  tbt  Federal  Unioo,  berrtolbte  ooljr  ntea* 
aead,  la  now  fotmldably  altmiptad. 

"  1  bold  that,  tn  oaotimpWion  of  >nl- 
renal  lav  and  ef  Uie  Comtllntion,  the 
lliiloa  of  tbtoe  Ktatoe  la  perpriul.  Per- 
pehilty  U  ImplMd,  if  not  oxpr^acd,  in  lb* 
flmdanienlal  lew  of  all  natkaal  gorerv- 
BMnla.  It  b  eato  to  aeiRt  that  n>o  gov- 
enunent  pvoper  enr  had  a  pravMon  b  U* 


otg*D<i:l>«forltaow«t«nntiiatIn«.  C»- 
liniM  (o  exocMa  all  tbr  espnaa  promioiw 
of  our  natioMd  Conctltatfoo,  and  tbt 
Union  wUl  ODdMn  FntTtr,  It  bdof  to> 
paodhle  to  dfoboy  it.  exoefrt  by  tono 
arlion  »ol  providnl  Cor  in  tbe  iaMniooai 
itaelf. 

"  Attain,  if  tho  Onlud  StalM  be  Mot  a 
goremmonl  proptr,  tat  an  aandatiaa  «l 
State*  in  the  aatoro  of  tho  eonuaot  Diaidr> 
can  It,  ax  a  contract,  b*  paeotabty  «nfna4* 
britm  tbuall  the  partteawhe  meilr  tlM 
Ono  party  to  a  ocntrart  naap  rtolato  U, 
break  it,  (D  to  apeak,  but  de«a  It  not  roqtrfn 
all  to  ImfiiJly  mrind  It  t 

"  DeaceniUag  front  tbse  gtatnl  {irrla- 
elpla*.  we  find  tbcptepoeidoa  that,  Intagal 
conUnptaHon,  tb*  Ualoa  b  perpetual, 
coaBt»Hl  by  tho  hlMory  of  the  l^nion  it- 
tclC._jmie  Uoiaa  ia  mocb  older  tban  iha 
ConnitntMii.  Il  wm  fisnaed,  la  Utt,  bj 
thit  ArtiiJoe  oT  Awflatlaa.  in  17T4.  Il 
vaa  malorad  and  eoullnnpl  hy  the  Debb- 
ntkn  of  IndefitMlBnatt  Id  1770.  It  vaa 
farther  matured,  and  (bo  faith  of  all  iha 
then  thitteen  Statei  expicnlj  plighlad  aad 
enpgod  Ibet  tl  ihooli!  beixrpHBal.liy  tha 
Artiolt*  of  OsalManition,  la  177B.  Aad 
finally,  ia  1 767,  ono  of  tba  ikolaied  otjoett 


APTHIDIX. 


775 


tn  onltiniog  uidMttbfiAlng  tht  Conitit- 
utiou  WW  'tajarm  o  »»rt  per/td  tMim.' 

"But  iT  ikounction  «f  tfao  Ublon,  t»r 
«IM^  or  t^  ft  jatt  ooly,  or  the  Suil«f.  ha 
UofltUr  poMlhlo,  tbo  Uoion  i*  low  p«rf«ct 
IhU  UCan,  (bt  CcUtilulioD  having  iMt 
tb«  viul  «km«it  of  peip«taily. 

"  It  toUotn  fnat  thiete  ncwi.  Uiat  no 
Sut(^  upon  iti  own  awn  modoa,  cui  law- 
IMy  gM  «ttt  of  tli«  Dnton  i  Uui  ittalstt 
ud  eniiimmxt  to  th>t  «db«t  u«  hgtllf 
Toid :  aad  th»t  Mb  of  Ttdnoet  vitlun 
U)r  SUtc  oa  SUM,  Mgalait  the  aulhoritjr 
of  Uio  Uultol  StiUai,  an  latiimctloiuifT 
m  t«voUli««ttty,  MMnling  ta  circum- 
Mancea. 

*'  1  tbetdbn  coDildcr  that,  in  view  of 
th«  Coouftulkai  and  Uie  IawJ^  the  Uiuan 
It  nnbrolon,  ami,  to  tha  «al«iii  of  inj 
abitily,  I  *ball  taltt  ans,  w  llii  Coualilii- 
tion  itaelf  aptcady  cDJoini  upon  me,  tlut 
tlio  Uwa  of  llie  Union  bo  [nitUrully  cic- 
cuKd  la  all  Ui«  Hlatiui.  DoliiK  IliU  1 
iImdi  to  WoMlr*  tiiii|>le  duty  uii  my  jwl, 
■■d  I  ahall  psrfom  it,  u  fu  ai  practicable, 
tuiltM  my  rightful  ntutcre,  tli*  Ainttkaa 
ptopltv ■ball  withbold  tliorequinilciuawu, 
or,  in  tome  autboritativc  manner,  dinct 
the  Mntnry.  I  trust  Ihia  will  tint  b«  i*> 
KUiI*d  a*  a  in»iiK>i,  but  ouly  *«  a  dwlarvd 
|iuffie«  «f  tlw  Ubuni  that  It  will  coii*titu> 
tMnaUj  dffoii^  uid  TTwIntfiJit  Jtaelf. 

"  In  doing  thu  there  need  be  no  hlood- 
ahnl  or  rloUnM  ;  and  thrr«  kIuJI  t«  none, 
witM  It  tit  Torced  upou  tbr  nitional  a«- 
Utorlty.  Th«  poonr  confided  to  nw  will 
bo  lued  to  hold,  otcutif,  and  |i»iMi  th* 
inupMly  and  plana  b4onglnK  to  Um  gor- 
•nuMSt,  aiul  to  coUfct  the  dutin  and 
Impoab ;  but,  beyond  what  may  b«  nee(» 
MUj  far  thcM  objettj^  tbtn  will  be  no 
fainnon,  m  n«ng  o(  fotco  agslMt  of 
amoag  the  ptople  anywhara.  When  bca- 
Ullly  agalMt  tin  Unlta4  Htatei^  tn  any 
itttarlor  lunilily,  thall  ba  ao  fftat  and  nni- 
Tena)  •■  to  fnvcnl  ooHpctent  mildanl  clt(< 
an*  fmn  haUJng  tW  Fadatal  ofcea,  then 
will  bo  BO  atlampt  to  fora*  otmiaaaa$ 
atnngtn  among  tli«  people  for  tlial  ob' 
Ject  WhiW  th«  (trict  legal  right  Hay 
exitt  in  tho  gonrnncait  to  nilMco  the 


ttxefciMef  tkcM  ottee^  tWattentpt  to  do 
•0  would  be  M  Irritati^,  and  ao  ntarlj 
inpractiaable  with  all,  I  dHm  it  beltn. 
lot  tlte  timiv  to  (ongo  the  ucee  of  amh 
cffiota. 

"The  mail*,  nnlcM  rt|allod,  wHl  eon- 
Umio  I«  b«  (unlahed  ia  all  parte  of  tke 
Union.  So  br  m  po«ifale  th«  P*<>pl* 
•rerjvrhien  ahall  haee  that  vnee  «f  pc«- 
fett  eeeurlty  wliicii  I*  nwdit  (aronUe  to 
calm  Ihoe^t  ami  nArvtIon.  The  ooune 
ben  isdicaled  will  be  (allowed,  nnlee* 
current  arenla  and  esporieuae  ahaU  ahow 
aiaadin<atiaAorchaiig*  tobeimper,  and 
in  oveiy  tsie  and  toLlgtucy  my  beat  die- 
crotion  will  b«  exentMd,  aoxudlng  10  «it^ 
cumUanoc*  actually  dcialing.  and  with  • 
riow  a»d  a  hope  of  a  )>«acL>lal  wlntioai  of 
tlM  netkaial  iruiililv»  and  llin  reiCoiailoa 
of  fnt«fnal  nymiatliica  aud  alTectione. 

"That  thorn  BTo  perioiu  in  oon  aNtion 
or  another  who  aeck  to  iIuttDy  the  Union 
at  all  evoDIti  end  ar«  gUl  uf  any  )ii«ta(t 
to  do  it,  I  will  nultliN  aSnn  or  deny  i 
bat  if  then  be  •nub,  i  need  nddreee  no 
weed  tn  lh«m.  To  tbeoe,  however,  wh« 
lore  the  Union  may  I  not  efieak  I 

**  Berore  entering  upm  ao  grate  a  nat- 
ter a*  the  dntnicUun  of  our  uatknal 
Cibrio  with  all  it*  baif<t<,  ite  menedt^ 
and  it*  bopM^  wo«ld  it  not  bo  wfei  to 
aecorUin  peodMly  why  wo  do  It  t  Will 
yon  hanrd  h>  deeptrUe  a  *tep  wkile 
then  i*  eay  poaibility  that  any  of  the 
ill*  yon  By  from  hare  no  real  orietenoa  I 
Wmyo«,  wUle  thecertalBllhyou  fly  to 
•re  greater  than  ell  the  lealenee  yon  Sy 
IVoa,  —  will  you  ri*k  the  tomwiwion  of 
•0  fearful  a  mlitakcl 

"AU  proCta  to  be  tontent  In  tho 
Union  If  all  oetiMilutiwi*!  right*  oaa  te 
tnaintained.  Ii  it  true.  Ihrn,  that  any 
(i|^t,  plainly  wriittn  in  the  Cooititntka, 
haa  bean  dented  I  I  think  not.  Hapfdly, 
the  hnaan  mind  U  ao  sonetUatol  that  m 
party  am  mch  lo  the  andadty  of  <Mng 
tliia.  Think,  if  yon  enn.  «(  n  rin^a  in* 
tlnnoe  in  whkti  n  plainly  written  pt«- 
n*ian  of  the  CMUtitntkei  haa  e*te  been 
denied.  Ifby  the  oMie  force  of  nnmbcn, 
n  ■qiortty  ilMnld  deprive  a  nunorily  ef 


^db 


776 


APPEXMX. 


vaj  elouly  written  OMiMitntion*!  right, 
U  1^0x1,  111  %  inonl  point  of  rinvjiunliy 
nrolttliuD, — otttaiiity  wtmld  if  tuch  lig^l 
nn  ■  vilsl  oue.  Itut  luch  u  Dot  o«r 
eua  All  tbe  viul  ri^U  of  miooriliM 
tni  of  itidi*i<lDiU  on  ao  pldnlf  aMured 
U  tbtm  bf  alllnnatlon*  and  DCigaliaiM^ 
^uaDliiB  and  proUilalioiUi  En  tlu  COu- 
(litution,  tiiBt  ixintroverw*  iutrt0  ariot 
tonccming  ihcot.  But  uo  orxanic  la* 
can  (ivii  bit  (niiiinl  with  >  prariitoa  *|i«- 
riricilly  apiilinUc  toenrj  (|iiaitloa  wlikfc 
may  oronr  iu  pmclici)  ■dnuniitntiaa. 
K«  fetoigbt  ran  nnriciiata:,  noruijdoMi* 
mdnt  of  ToaaonabU  Iragth  i«ntaln,  inc- 
|<mH  |>ni*i«lon*  torati  F«ufbl«  ^u««Uoui. 
Shall  fngitifoi  frani  labot  b»  (nmodntd 
hj  national  or  hy  State  aotborityl  Th« 
OonMlIntlon  does  not  rxjniuly  ta;.  ttaji 
Cungrat*  jmihibll  tlanty  in  tlie  Terri- 
tcrioit  Th«  Conattlntioii  doM  not  a^- 
pnMl*M]r.  ifiufConfEtvapotactaUTurf 
tn  thu  TrrritoriM  r  Tlw  ComUntion  doca 
not  cxjimslf  mj. 

"Pram  qoaMtona  «f  thb  claaa  ifnfng 
•II  our  oonrtitutiona]  wntlOTWilta.  and 
we  dtviJr  u[ioa  tliem  into  majontie*  and 
BinoritJM.  If  the  minority  will  not  b«- 
qnletca,  the  niijority  ma*t,  or  the  gorvn- 
intmt  innit  oraia.  ThenianoaltfraatiTc; 
far  «antiiiiiing  tlic  gorcrntnonl  b  an]ni- 
aaetnca  on  on*  aid*  or  th«  otlirr.  If  a 
mlnorily  fn  ain'h  caaa  will  aeved*  ntlior 
than  a«i|<il«ac*  tb(7  mak«>  •  ]>MOfd««it 
which,  in  lirrn,  will  divide  and  ruin  them ; 
tot  a  miiioritj-  of  tbeii  own  will  aeteda 
(ram  tbcM  whcnercf  a  m^^tjr  fthiaa  to 
b*  -oontMlled  ty  addi  nlMrity-  Fev  in- 
•tan«^  why  miiy  n^A  any  partlon  of  a  new 
OMManwy,  ■  yw  or  two  hewe,  arbitn- 
rily  aeoeda  agaia,  predasly  aa  poriioM  of 
tb*  prtaent  Onion  now  claim  to  aand* 
from  It  t  All  who  choriA  dimttioa  wnti- 
MMt*  an  now  htinj;  tdnntod  to  tba  exHt 
tmniNr  of  doing  tliii. 

"  b  there  BDiA  pcffect  identitir  of  ia- 
tenstn  among  ths  Stale*  to  compon  a 
MW  unbw,  a*  to  prodnoa  hantouy  oely, 
ui  pnrrat  n*twtd  Mwiiiwi  1 

"  Pbiinly  tha  centnl  ides  of  nYoarioa 
b  tha  munet  of  anaitky.     A  mi^^t; 


held  in  itatmint  Inr  MnMitntfama]  cIik 
and  limllatto■l^  and  alwaya  cliangiog 
taaity  with  debberela  (Innge*  ol  potmbr 
oj^dniiemi  and  aenlinMDta,  ii*Uie  only  tnu 
aoTsnign  of  a  froc  people  Whuna  rw- 
j»«»  It  doH,  of  MDoMty,  fly  to  manhj 
or  ta  dcfpotiun.  Unanimity  la  inpaari- 
bk;  the  nik  of  a  niinotily,  •■  a  ^naa- 

nent  amuiecowBt.  Ushollf  IT 

*o  that,  itjcctlnii  tlt*mi^iii;.  :■■. 

•nanJiy  o*  ihapoIiMD  la  aataa  lonu  b  all 
thatbkft 

"  I  do  not  forget  tha  poaUfmi  aauiniMl 
bjr  wnc,  that  oonuitutbnal  •iiieition* 
ate  to  bo  dwbltil  by  the  Sapreine  Cvuil^ 
iiur  do  I  deny  that  tuefa  dccUion  nnut  bt 
binding  in  any  cm*,  npon  ttw  |i«rti>»  to 
a  wll,  a*  to  tb(i  obJKt  of  thai  Mil,  white 
th*y  an>  atao  viililled  to  vny  high  rea^MCt 
and  MnaidentioN  in  aO  fmlld  nuea  I7 
■11  other  dupartment*  of  At  gavenunan. 
And  while  It  b  oMoualy  pouIUa  that 
■Dch  detblon  my  bo  erroneone  in  any 
given  <a*ei  atill  the  eri)  dieot  foUowiBgi 
it,  being  limitrd  to  ttot  putieabr  emtt, 
Willi  the  ciMnM  that  it  may  h»  ovemaled, 
and  nerer  ben>iB«  a  ptncedent  {et  other 
oaaes,  can  farltrr  be  borae  than  coohl  the 
•nb  of  a  dUfrreal  prs-tlee.  At  tji«  mm* 
tinM  the  caadid  tillaen  MUM  coDfiMa  that 
if  the  policy  «f  the  gortnnMat  npo* 
vital  qnealimii,  •ObetinK  tho  wboJc  }■»■ 
[Je,  it  to  be  invToeably  8xad  tly  dacbioM 
of  the  Siipmne  Conrt,  the  instant  Ihty 
an  made  In  ordinniy  littption  bHwceM 
partia  in  pcraonal  actiona,  tW  yiajdc  wiU 
ham  lyaiod  to  ba  their  own  mien,  liaring 
ta  that  extant  inctkatly  rsiim"d  tbtir 
guiuiniaaat  falo  tlio  hurd*  of  that  end- 
ntrnt  iriboMal. 

"  Nor  b  tbtn  In  t)il«  ei>w  any  imault 
upon  the  ooart  or  the  jvig^.  It  i*  a 
duty  from  vhkb  tbry  may  n«4  (Irink  to 
deddt  caMa  prapeily  b^i  ii,' 

and  It  b  no  ball  of  lli'  k| 

to  tar«  their  decialon*  Ui   \ 
pu*ea.      One  m-tioii  "f  nor 
beVM   ilnTety   i«   r     ' 
vxtnidcd,  wlilb  '.:. 
imu^.    anil   oitjclit   tiol  Ici   : 
Thb  b  the  only  ■n!at«>Ual  iti  ■_ 


APPBMDIX. 


777 


fugitive  aUre  diiue  of  th«  Coiutitation 
uid  the  law  for  the  mppresaioD  of  the 
fbteign  slKTo-lnde  an  each  ■•  well  en- 
foicnd,  perhaps,  oa  uiy  law  erer  can  ba  in 
a  eominunitj  where  the  mont  aeiue  of 
the  people  imperfectlj  uipporta  the  law 
itself.  The  great  body  of  the  people 
abide  by  the  dry  legal  obligation  in  both 
aaia<,  sod  a  few  break  orer  in  each.  This, 
1  think  cannot  be  perfectly  cnred  ;  and  it 
wonld  be  worse  in  both  caaea  a^ltr  the  tep- 
antion  of  the  sectioDs  than  before.  Tha 
foreign  Klave-trade,  now  imperfectly  mp- 
preaaed,  wonld  ba  nltimately  revived 
without  restriction  in  one  section  ;  while 
fugitive  slaves,  now  011I7  partially  snr- 
rendered,  would  not  b«  aotrendered  at  all 
b;  the  other. 

"  Physically  speaking,  we  cannot  wp- 
arate.  We  cannot  rentove  our  respective 
sections  from  each  other,  nor  build  an  im- 
pasiable  wall  between  them.  A  husband 
and  wife  may  be  divorced,  and  go  out  of 
the  presence  and  beyond  the  reach  of  each 
other,  but  the  diSerent  psrta  of  our  conn- 
try  cannot  do  this.  They  cannot  bnt  re- 
main face  to  face,  and  [ntercouree,  either 
amicable  or  boatile,  moat  continue  between 
them.  I9  it  possible,  then,  to  make  that 
IntercoQtBe  toore  advantageous  after  aep- 
station  than  h^ore  ?  Can  alieoa  make 
treaties  eadet  than  friends  can  make  lawa  t 
Can  treaties  be  more  faithfnlly  enforced 
between  aliens  than  laws  can  among 
friends  I  Suppose  yon  go  to  war,  yoD 
cannot  Gght  always ;  and  when,  aCler 
much  lota  on  both  sides,  and  no  pin  on 
either,  you  ceaae  Qgbtiug.  the  identical 
old  questions,  as  to  terms  of  intercourse, 
are  again  upon  you. 

"  Thia  country,  with  its  institutions, 
beloDgs  to  the  people  who  inhabit  it. 
Whenever  they  shall  grow  we«Ty  of  the 
existing  government  thej  can  eiercise 
their  commKlUmal  right  of  amending  it, 
or  their  revolutionary  right  to  dismember 
or  overthrow  it.  I  cannot  be  ignotant  of 
the  fact  that  many  worthy  and  patriotic 
citizens  are  deuroiia  of  having  the  national 
Constitution  amended.  While  I  make  no 
recommendation  of  amendments,  I  fully 


recognize  the  rightful  authoritr  of  the 
people  over  the  whole  autgect,  to  be  exer- 
ciaed  in  either  of  the  modn  prescribed  in 
the  iastnuneDt  itself ;  and  I  ahould,  under 
existing  drcumatances,  favor  rather  than 
oppose  a  fair  oppottnuity  being  afforded 
the  people  to  act  upon  it.  1  will  venture 
to  add,  that  ta  me  the  convention  mode 
seems  prefemble,  in  that  it  allows  amend- 
ments to  originate  with  the  people  them- 
selves, instead  of  only  allowing  them  to  take 
or  rqect  propositions  originatiNl  by  others, 
not  especially  choMn  for  the  pnrpoae,  and 
which  might  not  be  precisely  such  as  they 
would  wish  to  either  accept  or  refuse.  I 
nnderatand  a  proposed  smendment  to  the 
Constitution  —  which  amendment,  bow- 
ever,  I  have  not  seen  —  has  passed  Con- 
gress, to  the  effect  that  the  Federal  gov- 
emroent  ahall  never  interfere  with  the 
domestic  institntioiis  of  the  States,  iu- 
clndjng  that  of  persona  held  to  service. 
To  avoid  mlsconstmction  of  what  I  have 
said,  1  depart  from  my  purpose  not  Va 
speak  of  particular  amendments  so  far  as 
to  say  that,  holding  such  a  provision  now 
to  be  implied  constitutional  law,  I  have 
no  ahjection  to  its  being  made  express  and 
irrevocable. 

"The  Chief  Magistiate  derives  all  his 
anthon^  from  the  people,  and  they  have 
conferred  none  uxKin  him  to  fix  terms  for 
the  separation  of  the  States.  The  people 
theiDselves  can  do  this  also,  if  the;  choose ; 
bnt  the  execudve,  ea  anch,  has  nothing  to 
do  with  it.  His  duty  is  to  adminijter  the 
present  government,  as  it  came  to  his 
hands,  and  to  tiausmit  it  unimpaired  by 
him,  to  his  successor. 

"Why  should  there  not  be  a  patient 
confidence  in  the  ultimate  justice  of  the 
people  I  Is  there  any  better  or  equal 
hope  in  the  world  t  In  our  present  dif- 
ferences it  either  perty  without  faith  of 
being  in  the  right  I  If  the  Almighty 
Buler  of  Natbns,  with  his  eternal  truth 
and  justice,  be  on  your  aide  of  the  North, 
or  on  youra  of  the  South,  that  truth  and 
that  justice  will  truly  prevail,  by  the 
judgment  of  thia  gre*t  tribnnal  of  the 
American  people. 


778 


APPENDIX. 


"  By  tbe  &«iim  of  the  gOTonment  un- 
der which  we  live,  this  nnit  people  hive 
wiael;  givea  their  public  wmnts  bnt  little 
power  for  mi*cbi«r  i  tod  have,  with  equal 
wudom,  pTOTided  for  ttie  ntorn  of  tbat 
little  to  their  own  hauils  at  itrj  ebort  in- 
tarralt.  While  tbe  people  retain  their 
vlrtoe  and  TigiltDce,  no  sdmibistntion 
bj  any  extreme  of  weakneei  or  folly  can 
Tcry  seriooily  injure  tbe  gaTemment  in 
the  short  space  of  four  yean. 

"  Uy  Mantrymeii,  one  and  all,  thin^ 
calmly  and  totil  upon  thia  whale  mlgect. 
Nothing  Talnable  can  be  lost  by  taking 
time.  If  there  be  an  otqect  to  hurry  any 
of  you,  in  hot  haate,  to  a  step  which  jon 
iriU  never  take  diiibenUety,  that  object 
will  be  fnutrated  by  taking  time.  Snch 
of  yon  ai  are  now  iliasatisGed  still  have  the 
old  Cooetitntion  unimpaired,  and,  on  the 
•eositive  point,  the  laws  of  yonr  own 
framing  under  it ;  white  the  new  adminit- 
tration  will  have  no  immediate  power,  if 
it  would,  to  change  either.  If  it  were  ad- 
mitted that  yon  who  are  diuatUGed  bald 
the  right  side  in  the  diapnte,  there  still  is 


BO  dngla  good  raaaon  for  precijntate  action. 
Iittelligenc^  patriotism,  Christianity,  and 
a  Arm  reliance  on  Him  who  has  never  vet 
forsaken  this  fcvoTed  land,  an  still  com. 
petent  to  a4f>^  i°  the  beat  way,  ill  oar 
present  difficulty. 

"  In  your  hands,  my  dinatiafied  fellow, 
countrymen,  and  not  in  mine,  is  the 
momentous  issue  of  civil  war.  The  gov- 
emmeut  will  not  assail  j/ou.  Yoa  can 
have  no  conSict  withont  being  yontselves 
the  aggressors.  You  have  no  oath  r^is* 
terad  in  heaven  to  destroy  tbe  goremment, 
while  1  shall  have  the  most,  solemn  one  to 
'preserve,  protect,  and  defend  it.' 

"  I  am  loath  to  dose.  We  are  not 
enemies,  but  friends.  Wa  must  not  be 
enemies.  Though  passion  may  have 
stndoed,  it  must  not  break,  our  bonds  of 
affection.  The  mystic  chords  of  memory, 
stretching  from  ever;  battle,  field  and 
patriot  grave  to  every  living  heart  and 
heatthstooB,  all  over  this  broad  land,  will 
yet  swell  tbe  chonu  of  tbe  Union,  when 
again  touched,  ss  sorely  they  will  be,  by 
the  better  angels  of  our  natore." 


END  OP  TOL.  I. 


3  fclOS  DID  S?D  St3 


STANFORD  UNIVERSITY  LI6RARIES 

CECIL  H     GREEN   LIBRARY 

STANFORD.   CALIFORNIA  94305-6004 

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